Regents of University of Michigan v. State

• Citation: 235 N.W.2d 1,395 Mich. 52
• Decision Date: 28 October 1975
• Docket Number: No. 1,1
• 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. 395 Mich. 52, 235 N.W.2d 1
• Court: Supreme Court of Michigan

Page 1

235 N.W.2d 1

395 Mich. 52 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.

No. 1.

395 Mich. 52, 235 N.W.2d 1

Supreme Court of Michigan.

Oct. 28, 1975.

Miller, Canfield, Paddock & Stone by George E. Bushnell, Jr., and Gregory L. Curtner, Detroit, for plaintiffs-appellees; Leland W. Carr, Jr., Lansing, Richard Strichartz, Detroit, Roderick K. Daane, Ann Arbor, of counsel.

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

Before the Entire Bench except SWAINSON and LINDEMER, JJ.

COLEMAN, Justice.

In this declaratory action the plaintiffs question the constitutionality of 1971 P.A. 122, §§ 13, 20 and 26. They also seek an interpretation of Const.1963, art. 8, § 3. We do not find it necessary to resolve the question of the constitutionality of §§ 13 and 26 and the first and third sentences of § 20. We find the remainder of § 20 to be constitutional. We further hold the planning and coordinating function of the State Board of Education as it refers to plaintiffs in Const.1963, art. 8, § 3 to be advisory in nature.

The plaintiffs (Universities) maintain that 1971 P.A. 122 infringes upon their constitutional autonomy by (§ 13) limiting the numbers of and tuition paid by out-of-state students, (§ 20) unduly restricting the 'construction of buildings or operation of institutions of higher education' and (§ 26) requiring that there be no raise in tuition or student fees beyond the amount of revenue reported for budget purposes. This action has been directed against defendants State of Michigan; Allison Green, Treasurer; and Glenn S. Allen, Jr., Budget Director.

Only plaintiffs and intervening defendant, Michigan State Board of Education (Board), are concerned in the questions raised by Const.1963, art. 8, § 3. The Board contends that the requirement to 'serve as the general planning and coordinating body for all public education' includes the authority to approve new programs prior to their implementation by the plaintiffs. Thus it seeks Inter alia a holding from this Court that the Board of Governors of Wayne State University acted illegally in implementing new doctoral programs in anthropology, electrical engineering and civil engineering, a master's program in occupational therapy, and the Center for Urban Affairs without requesting or obtaining the Board's prior approval. Similarly, the Board declares that the Regents of the University of Michigan lacked the lawful authority to institute a Bachelor of General Studies degree and to expand the University of Michigan Dearborn Campus from a two-year to a four-year institution. The Board also challenges the Board of Trustees of Michigan State University for having established the Center for Race Relations and Urban Affairs without prior approval.

The Ingham Circuit Court found 1971 P.A. 122, §§ 13, 20 and 26 unconstitutional. It further found that Const.1963, art. 8, § 3 did not require the Universities to obtain the prior approval of the Board to 'expand or establish programs or departments, or expand branch campuses'. The Board's authority was 'limited to recommending to and advising the legislature as to the desirability of the plaintiffs' plans and requests for funds'.

The trial court was affirmed by the Court of Appeals, 47 Mich.App. 23, 208 N.W.2d 871 (1973).

These challenges to the 1971 appropriations act Technically are moot. Some of the challenged legislative provisions have not appeared in acts subsequent to 1971 and we decline to confront problems where none exist. However, we will address those issues which are of continuing pertinence.

ISSUES RAISED BY PARTIES

1.

Do the conditions and limitations imposed in 1971 P.A. 122, §§ 13, 20 and 26 (Higher Education Appropriation Act of 1971), unconstitutionally intrude upon the authority of the universities as set forth in Const.1963, art. 8, §§ 4, 5 and art. 5, § 20?

2.

Does the provision in Const.1963, art. 8, § 3 that the Michigan Board of Education 'serve as the general planning and coordinating body for all public education, including higher education' include the authority to veto prior to implementation by the universities?

GENERAL

Essentially we must address the distribution of power among the legislature and governor, the governing boards of the universities and the State Board of Education.

Plaintiffs and defendants cite various portions of convention committee debates with equal authority for opposing views. The impact of some of the arguments diminishes or is nullified when the relevant debates are considered as a whole.

The debates must be placed in perspective. They are individual expressions of concepts as the speakers perceive them (or make an effort to explain them.) Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures.

Therefore, we will turn to the committee debates only in the absence of guidance in the constitutional language as well as in the 'Address to the People,' or when we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept. The reliability of the 'Address to the People' (now appearing textually as 'Convention Comments') lies in the fact that it was approved by the general convention on August 1, 1962 ¹ as an explanation of the proposed constitution. The 'Address' also was widely disseminated prior to adoption of the constitution by vote of the people.

The applicable common law is directed largely to pre-Const.1963 language (some of which was retained).

As defendants point out, '(T)his is the first major case in this area of Michigan constitutional law * * * to reach the Court since State Board of Agriculture v. Auditor General, 226 Mich. 417 (197 N.W. 160)', decided over 50 years ago in 1924 and the first case in this area to reach the Court under the 1963 constitution.

1.

1971 P.A. 122

Pertinent Constitutional Provisions

Const.1963, art. 8, § 4

'The legislature shall appropriate moneys to maintain the University of Michigan, Michigan State University, Wayne State University, Eastern Michigan University, Michigan College of Science and Technology, Central Michigan University, Northern Michigan University, Western Michigan University, Ferris Institute, Grand Valley State College, by whatever names such institutions may hereafter be known, and other institutions of higher education established by law. The legislature shall be given an annual accounting of all income and expenditures by each of these educational institutions. Formal sessions of governing boards of such institutions shall be open to the public.' ²

Const.1963, art. 8, § 5

'. . . Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds . . .' ³ Const.1963, art. 5, § 20

'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.' ⁴

A capsule history provides perspective to these proceedings.

The University of Michigan was established by act of the Governor and judges of the Territory of Michigan on August 26, 1817. The act increased the public taxes 15% And appropriated the increase to the university. A priority of expenditure was created, the balance to be utilized 'as shall be from time to time by law directed'. Control was in the Legislature.

On April 30, 1821, the Governor and judges repealed the August 26, 1817 act, replacing it by an act creating the University of Michigan 'under the management, direction and government of twenty-one trustees, * * * a body politic and corporate'. ⁵ This body also was given authority (§ 5) to establish such other 'colleges, academies and schools' as it thought proper and its funds permitted. Because of a series of federal acts providing land for support of education in the territories and reliance on its continuation, little reference was made to financial support and early constitutions. ⁶ Control was in the university.

Mention of the university was made in Const.1835, art. 10, § 5 in a section which spoke largely to the preservation of the interest fund derived from sale of part of the federal lands. However, 1837 P.A. 55, 'An Act to provide for the organization and government of the 'University of Michigan", rested the government of the university in a board of regents (§ 3) and gave the regents power to expend all moneys for the use and benefit of the university (§ 17).

Therefore, it appears that the Legislature took general control over this body, but delegated some control back to the regents.

In Sterling v. Regents of University of Michigan, 110 Mich. 369, 68 N.W. 253 (1896), Justice Grant wrote of the history of the 1850 Constitution:

'Under the Constitution of 1835, the legislature had the entire control and management of the university and the university fund. . . . The university was not a success under this supervision by the legislature . . ..'

In 1850 the status of the university was re-established, and Const.1850, art. 13 reads in essence the same as the 1908 provision and subsequently the 1963 provision.

Similarly, Michigan State University, the...