Seals v. Henry Ford Hosp.

• Decision Date: 06 May 1983
• Docket Number: 60510 and 60511,60359,57609,60360,Docket Nos. 57454
• Citation: 123 Mich.App. 329,333 N.W.2d 272,43 Fair Empl.Prac.Cas. (BNA) 1160
• Parties: Sandra SEALS, Plaintiff-Appellant, Cross-Appellee, v. HENRY FORD HOSPITAL, Douglas Peters, and John Frenn, Defendants-Appellees, Cross-Appellants. Barbara L. TROYER, Plaintiff-Appellant, Cross-Appellee, v. FIRST NATIONAL BANK AND TRUST COMPANY OF MICHIGAN, Civil Rights Commission and Michigan Department of Civil Rights, Defendants-Appellees, Cross-Appellants. Jerry C. TROYER, Plaintiff-Appellant, Cross-Appellee, v. FIRST NATIONAL BANK AND TRUST COMPANY OF MICHIGAN, Civil Rights Commission, and Michigan Department of Civil Rights, Defendants-Appellees, Cross-Appellants. 123 Mich.App. 329, 333 N.W.2d 272, 43 Fair Empl.Prac.Cas. (BNA) 1160
• Court: Court of Appeal of Michigan — District of US

Page 272

333 N.W.2d 272

Sandra SEALS, Plaintiff-Appellant, Cross-Appellee, v. HENRY FORD HOSPITAL, Douglas Peters, and John Frenn,

Defendants-Appellees, Cross-Appellants.

Barbara L. TROYER, Plaintiff-Appellant, Cross-Appellee, v. FIRST NATIONAL BANK AND TRUST COMPANY OF MICHIGAN, Civil

Rights Commission and Michigan Department of Civil

Rights, Defendants-Appellees,

Cross-Appellants.

Jerry C. TROYER, Plaintiff-Appellant, Cross-Appellee, v. FIRST NATIONAL BANK AND TRUST COMPANY OF MICHIGAN, Civil

Rights Commission, and Michigan Department of

Civil Rights, Defendants-Appellees,

Cross-Appellants.

Docket Nos. 57454, 57609, 60359, 60360, 60510 and 60511.

123 Mich.App. 329, 333 N.W.2d 272,

43 Fair Empl.Prac.Cas. (BNA) 1160

Court of Appeals of Michigan.

Submitted Dec. 7, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 331] Wickett, Laudenslager & Baugh, P.C. by Robert W. Smith and Mary E. Delehanty, Kalamazoo, for Troyers.

Susan Winshall & Associates, P.C. by Susan Winshall, Southfield, for Seals.

Howard & Howard by Lawrence J. Murphy, Kalamazoo, for First Nat. Bank.

Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C. by Terrence J. Miglio, Thomas H. Schwarze and Gary P. King, Detroit, for Henry Ford Hosp., Peters, and Frenn.

Ronald J. Reosti, Detroit, amicus curiae for American Civil Liberties Union Fund of Michigan, [123 MICHAPP 332] The Coalition of Black Trade Unionists (Detroit Chapter), The Detroit Association of Black Organizations, Michigan Trial Lawyers Association, The Wolverine Bar Association, The National Association for the Advancement of Colored People (Detroit Chapter), The National Lawyers Guild (Detroit Chapter), Organization for the Advancement of Minority Employment, The Women Lawyers Association of Michigan.

Before BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

BRONSON, Presiding Judge.

The issue common to these appeals is the trial judge's holding that the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., is unconstitutional.

In each case, the trial judge held that the act violated the single-object clause of Const.1963, art. 4, Sec. 24. The arrest record and polygraph provisions of the act were found to be nongermane to its object. In each case, the trial judge held that provisions of a statute found to violate the single-object clause are not severable.

None of these cases involves the arrest record or polygraph provisions of the act. All of the parties concede, therefore, that we must first address appellants' contention that these provisions are severable. In holding that they are not, the trial judge [123 MICHAPP 333] in each case relied exclusively on the majority opinion in Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich. 123, 130-132, 240 N.W.2d 193 (1975), in which the Court stated:

"Severability is not available in instances challenging constitutionality on this ground. A prohibition against the passage of an act relating to different objects expressed in the title makes the whole act void."

The Court explained:

" 'It is impossible to tell which object was intended by the Legislature, and in such case both fall under the same condemnation.' Skinner v Wilhelm, 63 Mich 568, 572; 30 NW 311 (1886).

"An early reference to the concept behind the constitutional prohibition is found in colorful language in People v Collins, 3 Mich 343, 384 (1854), a case in which the Court was evenly divided on the constitutionality of an act prohibiting the manufacture of intoxicating beverages and the traffic therein. The decision discussed other challenges, but in his opinion and indicative of judicial awareness of the problem, Justice PRATT said:

" 'This express and positive provision was incorporated into the constitution with the avowed intention on the part of the framers, of arresting, as far as possible, corruption and log rolling in legislation--you help me and I will help you--I will support your bill and help you pass it, if you will permit me to insert a section on a certain matter, etc.; a system of legislation that has often been carried so far as to become disgraceful to representatives and deeply injurious to the public.' People v Collins, supra.

"Justice COOLEY in People, ex rel Drake v Mahaney, 13 Mich 481 (1865), says with respect to the same provision of the Constitution of 1850:

" 'The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having[123 MICHAPP 334] no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.' Mahaney, supra, 494-495.

* * *

"This Court cannot engage in idle speculation as to whether, for instance, the provision relating to ethical conduct and conflict of interest contracts would on their own merits have been adopted by the Legislature, nor those relating to campaign contributions and expenditures, nor those establishing the state campaign fund for gubernatorial elections, nor those regulating lobbyists."

We cannot agree with the holdings of the courts below that a violation of the single-object clause always requires the invalidation of the statute in which it appears. Although some of the language used by the Supreme Court above is absolute, the reasoning used by the Court in the entire passage undermines an absolute rule. It would be unwise to impose a per se rule against severability on the basis of dicta, when such a rule is not supported by the well-known and long-accepted purposes underlying the constitutional provision.

This case shows why a slavish adherence to dicta in a Supreme Court opinion is often a poor substitute for legal analysis based on the reasoning of the same opinion. The analysis in Advisory Opinion, supra, does not include any reasons why a per se rule against severability should be adopted. Instead, it tests the act in question against the traditional standards for severability. In People v. McMurchy, 249 Mich. 147, 159, 228 N.W. 723 (1930), the Court quoted 1 Cooley on Constitutional Limitations (8th ed.), pp. 362-363:

[123 MICHAPP 335] " 'If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.' "

The test for severability used by the Court in Advisory Opinion, supra, is stated in the same passage from Cooley; whether it can be presumed that the Legislature "would have passed the one [provision] without the other". McMurchy, supra, p. 158. See also People ex rel. Attorney General v. Detroit Common Council, 29 Mich. 108, 114 (1874).

We find that the application of a per se rule against severability will not promote the purpose of the single-object clause when applied to amendments. Defendants here have asked us to hold that the Legislature's (at worst) inadvertence has resulted in the invalidation of a major piece of legislation. This case at least should raise the specter that minor nongermane amendments might be used to achieve the implicit repeal of other major statutory schemes. Such a perverse result could only be achieved with the help of a judiciary which ignores the presumptive validity of legislative enactments; we refuse to play this role here.

The Elliott-Larsen Civil Rights Act was adopted in 1976 (1976 P.A. 453). The polygraph provisions [123 MICHAPP 336] were added by separate amendments in 1978 (1978 P.A. 610) and 1979 (1979 P.A. 91). Nothing else was contained in either amendatory act. From an examination of the statute alone, without reference to any extrinsic aids, we can determine that the 1976 act was passed without consideration of the amendments to be made in the future. To do so, we need not engage in the "idle speculation" condemned by the Supreme Court in Advisory Opinion, supra. Even a cursory examination of the original act, its amendments and their dates of enactment, leaves absolutely no room to doubt the Legislature's intent. We conclude that the polygraph provisions of the act are severable; we need not address the issue of their constitutional validity.

Appellants argue that the arrest record provisions of the act are also severable. We disagree. These provisions were in the act, as passed, in 1976. The act was amended by 1977 P.A. 162 to refer to these provisions in its title. Plaintiffs argue that the adoption of this amendment on its own merits indicates that it would have been enacted independent of the rest of the act. This argument, if accepted, would sustain only the arrest record provisions. The rest of the act was never passed without containing the arrest record provisions. We should not presume that the act would have passed in 1976 without those provisions. Since it is the validity of the remainder of the act which appellants wish to sustain, the severance argument cannot help them.

We have no reservations, however, about holding that the arrest record provisions of the act are germane to its object. Ignoring the Supreme Court's numerous other opinions on the subject, defendants contend that this Court is...