Regents of University of Michigan v. State

• Decision Date: 16 May 1973
• Docket Number: Docket No. 13422,No. 2,2
• Parties: The REGENTS OF the UNIVERSITY OF MICHIGAN, a constitutional body corporate, et al., Plaintiffs-Appellees, v. The STATE of Michigan et al., Defendants-Appellants and Michigan State Board of Education, Intervening Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 871

208 N.W.2d 871

47 Mich.App. 23

The REGENTS OF the UNIVERSITY OF MICHIGAN, a constitutional

body corporate, et al., Plaintiffs-Appellees, v. The STATE of Michigan et al., Defendants-Appellants and Michigan State Board of Education, Intervening

Defendant-Appellant.

Docket No. 13422.

Court of Appeals of Michigan, Division No. 2.

May 16, 1973.

Released for Publication July 9, 1973.

Leave to Appeal Granted Sept. 13, 1973.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene Krasicky, Gerald F. Young, Asst. Attys. Gen., for defendants-appellants.

Miller, Canfield, Paddock & Stone, Detroit, for plaintiffs-appellees.

Before McGREGOR, P.J., and BRONSON and TARGONSKI, ^* JJ.

McGREGOR, Presiding Judge.

Defendants appeal as of right from the trial court's determination that certain sections of 1971 P.A. 122 are unconstitutional as applied to plaintiffs, and the intervening defendant appeals from that portion of the lower court's judgment which held that intervening defendant possessed no power to require its prior approval of certain education programs proposed by plaintiffs before plaintiffs could validly implement said programs.

This appeal results from a three-way struggle on the part of several governmental titans--the major universities, the State Legislature, and the State Board of Education--for the power effectively to control and direct the future course of higher education within this state. On December 22 1967, plaintiffs filed a complaint requesting a judicial determination that certain statutes unconstitutionally impinged upon plaintiffs' authority as granted by Const.1963, 1963, art. 8, § 5. After the elapse of a lengthy time interval, during which plaintiffs amended their original complaint several times in order to keep pace with legislative alterations of and additions to the statutes being attacked, the Michigan State Board of Education, on December 18, 1970, was granted leave to intervene in the case. All parties subsequently moved for summary judgment, and the trial court then heard oral arguments on this motion.

On December 6, 1971, the trial court filed a comprehensive written opinion declaring Inter alia that sections 13, 16, 18, 19, 20 and 26 of 1971 P.A. 122 were unconstitutional, that sections 1, 4, 7, 8 and 14 of said act were constitutional, and further that the intervening defendant did not have constitutional authority to require its prior approval of certain educational programs proposed by plaintiffs as a prerequisite to plaintiffs' valid implementation of said programs. On January 6, 1972, a judgment was entered pursuant to the trial court's written opinion. The State of Michigan, Allison Green, its Treasurer, and Glenn S. Allen, Jr., its Comptroller, (hereinafter referred to as defendants), on January 24, 1972, appealed as of right from the lower court's ruling that certain sections of 1971 P.A. 122 were unconstitutional. The Michigan State Board of Education (hereinafter referred to as the intervening defendant) on that same date appealed as of right from that portion of the trial judge's decision which held that said intervening defendant could not require its prior approval of certain educational programs which plaintiffs wished to implement.

I.

Subsequent to the commencement of this appeal, defendants filed a supplemental brief urging that sections 16, 18, 19 and 26 of 1971 P.A. 122 are not at issue in this appeal because of their omission from 1972 P.A. 260. Defendants claim that the question of the constitutionality of those sections is moot and they now 'waive' their appeal as to those sections.

We are not inclined to dismiss these questions on the basis of their alleged mootness.

The courts of this state have long recognized that an appeal does not become moot, despite the change in position of the parties through the passage of time, when the issue is of public significance and is likely to recur. In Milford v. People's Community Hospital Authority, 380 Mich. 49, 55, 155 N.W.2d 835, 838 (1968), the Court held:

'We deal first with the subject of mootness. Plaintiff in his supplemental complaint alleges that he was removed from the staff of Beyer Memorial Hospital pursuant to section 4.12 of the staff by-laws, which provides for annual reappointment. One might argue that as plaintiff is no longer a member of the staff, the question of his reduction of privileges is moot. Appellant and appellees each request us to decide the question, since, as they say, the matter is of great importance not only to the hospital and doctor involved but to all the doctors and publicly owned and operated hospitals in the State.

'The nature of this case is such that we are unlikely to again receive the question in the near future, and doctors and other people dealing with public hospital corporations cannot hope to have an answer to the questions raised unless we proceed to a decision. For these reasons, we conclude the case is of sufficient importance to warrant our decision.'

In Dartland ex rel. De Motts v. Hancock Schools, 25 Mich.App. 14, 16, 181 N.W.2d 41, 42 (1970), this Court held:

'We hold question raised is not moot for two reasons: First, the term for which appellant was a candidate was for four years. The office is still being filled by a candidate chosen at the election which appellant claims was legally infirm. Thus, were the allegations of illegality to be sustained, there would remain some period of time when another selectee could serve for the remainder of the term. Secondly, under our holding in Robson v. Grand Trunk Western Railroad Company (1966), 5 Mich.App. 90, 145 N.W.2d 846, if the question presented is of importance to the jurisdiction of the state, we are empowered to pass upon it judicially even though in a technical sense the question as to the involved parties or subject matter may be moot.'

In Lafayette Dramatic Productions v. Ferentz, 305 Mich. 193, 218, 9 N.W.2d 57, 66 (1943), the same rule was expressed:

'During the pendency of this appeal defendants filed motion in this court to dismiss the appeal, alleging that the contract for the employment of musicians for the period of one year had been fully performed and that the questions involved had, therefore, become moot. In such motion defendants further alleged in substance that the parties had entered into a new contract that was being amicably fulfilled. Plaintiff filed answer to such motion, denying that the questions regarding the validity of the contract have become moot and in substance alleging that plaintiff has been forced by duress and coercion to continue the contract in question for a further period of time.

'We have before us on this appeal only the questions relating to the original or first contract for one year. Notwithstanding such questions and the issues presented by this record might be considered moot, we deem the case of sufficient importance to warrant our decision, even though it may be in the nature of a declaratory decree.'

In Robson v. Grand Trunk Western Railroad Company, 5 Mich.App. 90, 99, 145 N.W.2d 846, 850 (1966), this Court decided a question regarding the constitutionality of the manner of selecting jurors even though the challenged jury had completed its term, because

'it is apparent that the errors complained of in the selection of the jury in the instant case have occurred in prior jury selections and may continue in the future.'

It is clear that the issue raised by this appeal is of fundamental importance to the people of this state. It is equally clear that the Legislature's attempted assertion of power over the operation of the three major state universities and the resistance of those attempts by the constitutional boards of control is an ongoing, recurring dispute which cannot be confined to the language of a single year's appropriation act.

As this case involves constitutional questions of critical importance concerning the effectiveness of attempted legislative interference into the internal affairs of the state universities, we deem those questions to be of sufficient importance to warrant our decision thereon.

Furthermore, a careful reading of 1972 P.A. 260 discloses that the Legislature has in no way abandoned its intention to substitute its judgment for that of the constitutionally created boards of control. Sections 16 and 18 of 1971 P.A. 122 prohibited the expenditure of state funds for instructors or students who had been found guilty, either by the courts or school officials, of interfering with university operations or damaging university property. The attorney general sought to defend those sections by invoking the 'police power' even though their ultimate effect would be to require the firing of an instructor or expulsion of a student, matters which relate to the internal operation of the university rather than the public welfare. Now, the Legislature, having lost the argument below, has changed tactics without changing its purpose.

Section 9 of the 1972 P.A. 260 provides:

'In order that the legislature obtain relevant information concerning the possible need for legislative exercise of the police power with respect to the colleges and universities of this state, all institutions of higher learning shall submit a full report of any incidents that result from any physical violence or the destruction of property including the total damages in dollars incurred. The report shall include the number of students arrested and classes missed due to strikes, boycotts or demonstrations. This report is due within 30 days of the incident.'

Section 11 provides:

'Any student who received scholarship funds under the provisions of Act No. 208 of the Public Acts of 1964, as amended, being sections 390.971 to 390.980 of the Compiled Laws of 1948, of receiving tuition grants under the provisions of Act No. 313 of the Public Acts of 1966, as amended, being sections 390.991 to 390.997a of the Compiled Laws of 1948, for or while in...