Straus v. Governor

• Decision Date: 09 June 1998
• Docket Number: Docket No. 204457
• Parties: , 128 Ed. Law Rep. 1196 Kathleen N. STRAUS, Barbara R. Mason, Marianne McGuire, and Herbert Moyer, Plaintiffs-Appellees, v. GOVERNOR of Michigan, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 520

583 N.W.2d 520

230 Mich.App. 222, 128 Ed. Law Rep. 1196

Kathleen N. STRAUS, Barbara R. Mason, Marianne McGuire, and Herbert Moyer, Plaintiffs-Appellees, v. GOVERNOR of Michigan, Defendant-Appellant.

Docket No. 204457.

Court of Appeals of Michigan.

Submitted Jan. 6, 1998, at Lansing.

Decided June 9, 1998, at 9:00 a.m.

Released for Publication Sept. 10, 1998.

Mark H. Cousens, Sachs, Waldman, O'Hare, Helveston, Bogas & McIntosh, P.C., Southfield, by Mary Ellen Gurewitz, Detroit, and White, Przybylowicz, Schneider & Baird, P.C. by Arthur R. Przybylowicz, Okemos, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Thomas R. Wheeker, Asst. Atty. Gen., for defendant-appellant.

Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.

O'CONNELL, Judge.

In this appeal of right, plaintiffs, elected members of the State Board of Education (hereafter the board), challenge, as being in excess of the authority vested in the Governor by Const. 1963, art. 5, § 2, and as being in derogation of the board's inherent constitutional prerogatives under Const. 1963, art. 8, § 3, the actions of the Governor in promulgating Executive Order Nos. 1996-11 and 1996-12. These orders transfer various powers of the board to the Superintendent of Public Instruction. The Ingham Circuit Court agreed with plaintiffs' contentions, and, on cross-motions for summary disposition, MCR 2.116(C)(8) and (10), issued a declaratory judgment and permanent injunction against the implementation of these orders. We reverse.

I. Facts and Background Information

The facts in this matter are not in dispute. On December 19, 1996, the Governor issued Executive Order No. 1996-11, which transferred "all of the administrative statutory powers, duties, functions and responsibilities" of the board to the superintendent by a "Type II transfer." ¹ In effect, Executive Order No. 1996-11 made the superintendent, rather than the board, the administrative head of the Department of Education. This order was to become effective March 10, 1997.

Also on December 19, 1996, the Governor issued Executive Order No. 1996-12. Section 1 of this order transferred "all of the administrative statutory powers, duties, functions, and responsibilities" of the board, as set forth in approximately one hundred different sections of the Michigan Compiled Laws, to the superintendent by a "Type II transfer." Section 2 transferred "[a]ll of the statutory rule making powers, duties, functions, and responsibilities" of the board, as set forth in an additional approximately thirty-nine sections of the Michigan Compiled Laws, to the superintendent by "Type II transfer." Section 3 stated that "all the statutory policy making powers, duties, functions, and responsibilities" of the board, as set forth in approximately thirty-six different sections of the Michigan Compiled Laws, "shall remain with the State Board of Education." Executive Order No. 1996-12 was to become effective July 1, 1997.

Given the nature of the case before us, we must take note of the limits of judicial competence in such matters. We cannot serve as political overseers of the executive or legislative branches, weighing the costs and benefits of competing political ideas or the wisdom of the executive or legislative branches in taking certain actions, but may only determine whether some constitutional provision has been violated by an act (or omission) of the executive or legislative branch. As has been long recognized, when a court confronts a constitutional challenge it must determine the controversy "stripped of all digressive and impertinently heated veneer lest the Court enter--unnecessarily this time--another thorny and trackless bramblebush of politics." Taylor v. Dearborn Twp., 370 Mich. 47, 50, 51-52, 120 N.W.2d 737 (1963) (Black, J., joined by Kavanagh, J.). Indeed, it is clear that issues of motive underlying the contested action are not justiciable. See also Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (noting that it is "not consonant with our scheme of government for a court to inquire into the motives of legislatures").

II. Standing

As a threshold matter, we address plaintiffs' standing to maintain this suit and our jurisdiction to issue injunctive relief against the Governor. Plaintiffs represent precisely one-half the membership of the State Board of Education. Voting as a bloc, plaintiffs have the ability to either determine the result of any matter coming before the board, by convincing one other member to join them, or to create an impasse if all other members of the board seek an opposite outcome. However, under Executive Order Nos. 1996-11 and 1996-12, plaintiffs' ability to forestall action by the board in the exercise of statutorily delegated powers is limited because the superintendent may act unilaterally (unless a majority of the board directs otherwise). This arguable diminution in plaintiffs' collective influence and official power suffices, in our view, to confer standing on them to pursue this challenge. House Speaker v. State Administrative Bd., 441 Mich. 547, 556, 495 N.W.2d 539 (1993); see also Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 2319, 138 L.Ed.2d 849 (1997).

We would also note that, because a court at all times is required to question sua sponte its own jurisdiction (whether over a person, the subject matter of an action, or the limits on the relief it may afford), Fox v. Univ. of Michigan Bd. of Regents, 375 Mich. 238, 242, 134 N.W.2d 146 (1965), we have some doubt with respect to the propriety of injunctive relief against the Governor. It is clear that separation of powers principles, Const. 1963, art. 3, § 2, preclude mandatory injunctive relief, mandamus, against the Governor. People ex rel. Sutherland v. Governor, 29 Mich. 320, 18 Am. Rep. 89 (1874). Whether similar reasoning also puts prohibitory injunctive relief beyond the competence of the judiciary appears to be an open question that need not be resolved in this case. We do note that the Supreme Court has recently recognized that declaratory relief normally will suffice to induce the legislative and executive branches, the principal members of which have taken oaths of fealty to the constitution identical to that taken by the judiciary, Const. 1963, art. 11, § 1, to conform their actions to constitutional requirements or confine them within constitutional limits. Durant v. Michigan, 456 Mich. 175, 205, 566 N.W.2d 272 (1997). Only when declaratory relief has failed should the courts even begin to consider additional forms of relief in these situations. Id. at 206, 566 N.W.2d 272. The need for utmost delicacy on the part of the judiciary, and respect for the unique office of Governor, was similarly recognized in People ex rel. Johnson v. Coffey, 237 Mich. 591, 602, 213 N.W. 460 (1927):

The governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives, and unseemly and unlawful to invade his discretion.

III. Standard of Review

This case is before us on cross-motions for summary disposition, MCR 2.116(C)(8) and (10). We review a trial court's ruling on a motion for summary disposition de novo. G & A Inc. v. Nahra, 204 Mich.App. 329, 330, 514 N.W.2d 255 (1994). Indeed, summary disposition under either MCR 2.116(C)(8) or (10) will always present an issue of law for our determination. Nahra, supra at 330, 514 N.W.2d 255.

IV. Analysis

When reviewing constitutional provisions, the objective of such review is to effectuate the intent of the people who adopted the constitution. Livingston Co. v. Dep't of Management & Budget, 430 Mich. 635, 641-642, 425 N.W.2d 65 (1988). The lodestar principle is that of "common understanding," the sense of the words used that would have been most obvious to those who voted to adopt the constitution. ² House Speaker v. Governor, 443 Mich. 560, 577, 506 N.W.2d 190 (1993). Where, as here, there is a claim that two different provisions of the constitution collide, we must seek a construction that harmonizes them both. This is so because, both having been adopted simultaneously, neither can logically trump the other. Kunzig v. Liquor Control Comm., 327 Mich. 474, 480-481, 42 N.W.2d 247 (1950).

The Governor's power under Const. 1963, art. 5, § 2, as has been noted, is nearly plenary. ³ In the absence of a legislative veto within sixty days during a regular session (or a full regular session of shorter duration), the Governor, by executive order submitted to the Legislature, may make changes in the organization of the executive branch or in the assignment of functions among its units that the Governor considers necessary for efficient administration. This power includes the authority to delegate, assign, or transfer existing power, responsibility, or authority within, among, or across not more than twenty principal departments. The Governor's power is limited only by constitutional provisions that would inhibit the Legislature itself. House Speaker v. Governor, supra at 578-579, 506 N.W.2d 190; Morris v. Governor (On Remand, After Remand), 214 Mich.App. 604, 608, 543 N.W.2d 363 (1995). Because the Governor's action has the status of enacted legislation, it is entitled to the same presumption of constitutionality that an equivalent statute would enjoy. Therefore, the judiciary should construe the executive orders as constitutional unless unconstitutionality clearly appears. Mahaffey v. Attorney General, 222 Mich.App. 325, 344, 564 N.W.2d 104 (1997) (statutes should be construed as constitutional unless unconstitutionality is clearly apparent).

The board is a constitutional authority, empowered with "[l]eadership and general...