Uaw v. Green, Docket No. 314781.

Citation839 N.W.2d 1,302 Mich.App. 246
Decision Date15 August 2013
Docket NumberDocket No. 314781.
PartiesUAW v. GREEN.
CourtCourt of Appeal of Michigan (US)

302 Mich.App. 246
839 N.W.2d 1


Docket No. 314781.

Court of Appeals of Michigan.

Original action filed Feb. 14, 2013.
Submitted without oral argument April 11, 2013.

Decided Aug. 15, 2013, at 9:10 a.m.

[839 N.W.2d 2]

William A. Wertheimer, Bingham Farms, Michael B. Nicholson, Buchanan, and Ava R. Barbour, Detroit, for the UAW and UAW Local 6000.

William A. Wertheimer and Sachs Waldman, PC, Detroit (by Andrew Nickelhoff), for Michigan Corrections Organization, SEIU Local 526; and Michigan Public Employees, SEIU Local 517M.

William A. Wertheimer, Bingham Farms, and Fraser, Trebilcock, Davis & Dunlap, PC, Lansing (by Michael E. Cavanaugh and Brandon W. Zuk), for Michigan State Employees Association, AFSCME, Local 5.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Ann M. Sherman and Margaret A. Nelson, Assistant Attorneys General, for Nino E. Green, Edward D. Callaghan, Robert LaBrant, the Governor, and the Attorney General.

Miller, Canfield, Paddock and Stone, PLC, Lansing (by Michael J. Hodge and Scott R. Eldridge), for Amicus Curiae the Civil Service Commission.

Before: SAAD, P.J., and DONOFRIO and GLEICHER, JJ.


As an intermediate appellate court, we typically decide appeals of orders issued by lower courts. But here, the Legislature placed in this Court exclusive original jurisdiction over challenges to 2012 PA 349 (PA 349), colloquially called a “right to work” law. MCL 423.210(6). PA 349 amends the public employment relations act (PERA), MCL 423.201 et seq.,1 and states that public employers—that is, the government—cannot require governmental employees to join a union or pay union dues, fees, or other expenses “as a condition of obtaining or continuing public employment....” MCL 423.210(3)(d) (emphasis added).

Also, typically, courts entertain constitutional challenges to substantive provisions of legislation. However, this action does not challenge the Legislature's public-policy decision to amend public-sector labor law to make financial contributions to unions voluntary instead of compulsory. Nor does it challenge the Legislature's right to make such laws applicable to public employees. Rather, plaintiff unions challenge the Legislature's constitutional authority to pass PA 349 and defendants' right to enforce it with respect to a subset of public-sector employees—those in the classified state civil service. Plaintiffs premise this challenge on the Constitution's carveout for a civil service system and the Michigan Civil Service Commission (CSC). Unlike other governmental employees, those workers identified in Const. 1963, art. 11, § 5 are part of the classified civil

[839 N.W.2d 3]

service, and they work under the aegis of the CSC. Pursuant to article 11, § 5, the CSC has the authority to “regulate all conditions of employment” for this group of governmental employees. Plaintiff unions and the CSC, as amicus curiae, argue that, within this limited arena, PA 349 intrudes on the CSC's sphere of authority. Defendants respond that, under the Michigan Constitution, the Legislature has the power to make laws applicable to all employees, public and private, including classified civil service employees. Defendants further maintain that the Legislature has done so in the past with the approval of our courts.

Since the most recent adoption of the Michigan Constitution in 1963 and the 1965 passage of PERA, our courts have not addressed the specific question before us. That is, in light of this historical, constitutional sharing of responsibilities for rulemaking by the CSC with respect to classified employees and lawmaking by the Legislature with respect to all employees, the issue of first impression is which governmental actor—the Legislature or the CSC—has the power to decide whether the payment of fees by classified civil service employees to unions should be mandatory or voluntary. This is the limited, narrow question we address as the statute directs, and as the parties ask.


Because the arguments raised involve the interpretation of provisions of the Michigan Constitution, we turn to the principles set forth in Traverse City Sch. Dist. v. Attorney General, 384 Mich. 390, 405–406, 185 N.W.2d 9 (1971), which addresses the “construction of a constitution”:

The primary rule is the rule of “common understanding” described by Justice Cooley:

A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. “For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” (Cooley's Const. Lim. 81). (Emphasis added.)

* * *

A second rule is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered. On this point this Court said the following:

In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished. Kearney v. Board of State Auditors (1915), 189 Mich. 666, 673 [155 N.W. 510].

A third rule is that wherever possible an interpretation that does not create constitutional invalidity is preferred to one that does. Chief Justice Marshall pursued this thought fully in Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137 (2 L.Ed. 60), which we quote in part:

If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, * * *.

[839 N.W.2d 4]

And while we recognize the political, economic, and social controversies underlying the enactment of PA 349, they are unrelated to our duty to apply these principles of constitutional interpretation. Indeed, “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.” Straus v. Governor, 459 Mich. 526, 531, 592 N.W.2d 53 (1999), quoting Taylor v. Dearborn Twp., 370 Mich. 47, 50, 120 N.W.2d 737 (1963) (Black, J., joined by T.M. Kavanagh, J.) (citation and quotation marks omitted).

Moreover, when a party seeks our declaration that a statute violates the Constitution, we must operate with the presumption that the statute is constitutional “unless its unconstitutionality is clearly apparent.” Taylor v. Gate Pharm., 468 Mich. 1, 6, 658 N.W.2d 127 (2003). As our Supreme Court further explained in In re Request for Advisory Opinion Regarding Constitutionality of 2011 Pa. 38, 490 Mich. 295, 307–308, 806 N.W.2d 683 (2011):

“We exercise the power to declare a law unconstitutional with extreme caution, and we never exercise it where serious doubt exists with regard to the conflict.” Phillips v. Mirac, Inc., 470 Mich. 415, 422, 685 N.W.2d 174 (2004). “ ‘Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.’ ” Id. at 423 [685 N.W.2d 174], quoting Cady v. Detroit, 289 Mich. 499, 505, 286 N.W. 805 (1939). Therefore, “the burden of proving that a statute is unconstitutional rests with the party challenging it,” In re Request for Advisory Opinion Regarding Constitutionality of 2005 Pa. 71, 479 Mich. 1, 11, 740 N.W.2d 444 (2007).... “[W]hen considering a claim that a statute is unconstitutional, the Court does not inquire into the wisdom of the legislation.” Taylor, 468 Mich. at 6, 658 N.W.2d 127.

Thus, in keeping with the law that governs our review of this legislation, we begin with the presumption that PA 349 is constitutional and proceed with the utmost caution to determine whether the plaintiff unions have met their burden of proof to show otherwise.


Our analysis necessarily begins with the Constitution itself and the particular sections applicable to the dispute. Pursuant to Const. 1963, art. 3, § 2:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

“Subject only to limitations and restrictions imposed by the State or Federal Constitutions, the State legislature is the repository of all legislative power.” Huron–Clinton Metro. Auth. v. Bds. of Supervisors of Five Cos., 300 Mich. 1, 12, 1 N.W.2d 430 (1942). Indeed, as our Supreme Court has explained, with these limitations, the Michigan Legislature “possesses all of the power possessed by the parliament of England,” Doyle v. Detroit Election Comm., 261 Mich. 546, 549, 246 N.W. 220 (1933), and “can do anything which it is not prohibited from doing by

[839 N.W.2d 5]

the people through the Constitution of the State or of the United States,” Attorney General, ex rel. O'Hara v. Montgomery, 275 Mich. 504, 538, 267 N.W. 550 (1936). Thus, “ ‘[t]he purpose and object of a State Constitution are not to make specific grants of legislative power, but to limit that power when it would otherwise be general or unlimited.’ ” Young v. Ann Arbor, 267 Mich. 241, 244, 255 N.W. 579 (1934) (citation omitted).

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