WAYNE CTY. BD. OF COM'RS v. WAYNE CTY. AIRPORT AUTH.

Decision Date11 December 2002
Docket NumberDocket No. 242406.,Docket No. 241521
Citation253 Mich. App. 144,658 N.W.2d 804
PartiesWAYNE COUNTY BOARD OF COMMISSIONERS, The County of Wayne, Ricardo A. Solomon, Kay Beard, Robert B. Blackwell and Jewel Ware, Plaintiffs, v. The WAYNE COUNTY AIRPORT AUTHORITY, Wayne Doran, The State of Michigan, John Engler, Michigan Department of Transportation, Greg Rosine, Edward McNamara, Raymond Wojtowicz, Thomas Naughton and Lester Robinson, Defendants. Wayne County Board of Commissioners, The County of Wayne, Ricardo A. Solomon, Kay Beard, Robert B. Blackwell and Jewel Ware, Plaintiffs, v. The Wayne County Airport Authority, Defendant/Cross-Defendant, and Wayne Doran, The State of Michigan, John Engler, Michigan Department of Transportation, Greg Rosine, Edward McNamara, Thomas Naughton and Lester Robinson, Defendants, and Raymond Wojtowicz, Defendant/Cross-Plaintiff.
CourtCourt of Appeal of Michigan — District of US

Plunkett & Cooney, P.C. (by Patricia Irving Cwiek, Jeffrey C. Gerish, Kenneth L. Lewis, and Seymour M. Nayer) (Pollard, Albertson, Nyovich & Higdon, P.C., by Dennis Pollard, of Counsel), and Ben Washburn, Mt. Clemens, Bloomfield Hills, Detroit, for the plaintiffs.

Miller, Canfield, Paddock and Stone, P.L.C. (by Saul A. Green, Carl H. von Ende, Terence A. Thomas, Sr., and Donald W. Myers), Robert E. Murphy, Robert S. Gazall, and Genelle M. Allen, Detroit, Detroit, for Wayne County Airport Authority and others.

Robert E. Murphy and Robert S. Gazall, Detroit, for Chairman of the Board of the Wayne County Airport Authority.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Michael G. Frezza, Assistant Attorney General, for state of Michigan and others. Axe & Ecklund, P.C. (by John R. Axe and Peter S. Ecklund, Jr.), Grosse Pointe Farms, for Wayne County Treasurer.

Before: HOOD, P.J., and WHITE AND O'CONNELL, JJ.

HOOD, P.J.

Plaintiffs, who commenced this original action1 pursuant to 2002 PA 90 (MCL 259.108 et seq.)2 and MCR 7.206, seek declaratory and injunctive relief in the context of their constitutional challenge to Act 90. Plaintiffs object to the transfer by Act 90 of operational jurisdiction of two airports from Wayne County to a statutorily created airport authority. Defendant Raymond Wojtowicz, the Wayne County Treasurer, filed a cross-complaint seeking in part a declaration regarding the procedures for the transfer of money and assets pursuant to Act 90. This Court directed the parties to file cross-motions for summary disposition.

We hold that plaintiffs' Headlee violation claim regarding the requirement of Act 90 that a county continue to employ airport employees who choose not to transfer to the airport authority is not ripe for adjudication and thus do not decide this issue. Plaintiffs may raise this claim in future litigation should the number of airport employees who choose not to transfer prove to be more than de minimis. With regard to plaintiffs' claim that the employee pensions constitute an unfunded new activity under Headlee, we observe that under Act 90, subsection 117(1)(d), the airport authority assumes, and is responsible for paying, the pensions. Finally, we hold that plaintiffs have not met their burden of demonstrating that Act 90 is unconstitutional as alleged in the remaining counts of their amended complaint. Accordingly, we grant summary disposition in favor of defendants and dismiss plaintiffs' claims, except for the Headlee claim relating to the transferring employees, with prejudice.

I History

Signed by the Governor in March of 2002, Act 90 amended the Michigan Aeronautics Code, adding chapter VIA, "the public airport authority act," M.C.L. § 259.108 to 259.125c. In part, Act 90 created an airport authority to manage and oversee the Detroit Metropolitan Airport (Metro Airport) and Willow Run Airport.3 Plaintiffs initiated the instant action against defendants4 to preclude that authority from managing the airports. Appearing as plaintiffs are the Wayne County Board of Commissioners and four individual commissioners,5 as well as the County of Wayne. The Board of Commissioners (hereafter the commission) is the legislative body of Wayne County. Wayne County was organized as a charter county pursuant to the state constitution, Const. 1963, art. 7, § 2, and pursuant to statute, M.C.L. § 45.1. The Wayne County Home Rule Charter, adopted in November of 1981 and effective in 1983, sets forth the powers of the commission. Under the charter, the commission has the authority to, among other things, adopt resolutions, appropriate funds, levy taxes, authorize borrowing, approve county contracts, approve appointments made by the county executive, override a veto of the county executive by a 2/3 majority, approve rules of county departments, and exercise powers granted by law to other counties unless expressly prohibited.6

In 1927, 1927 PA 182, gave Wayne County the authority to acquire land for Metro Airport, which was established in 1928. Before the enactment of Act 90, the county operated Metro Airport under the authority of the Michigan Aeronautics Code, M.C.L. § 259.1 et seq.7 Plaintiffs note that the value of the property and assets of Metro Airport and Willow Run Airport exceeds $2.1 billion and the annual revenue exceeds $200 million.8

In the 1990s, allegations of mismanagement of Metro Airport arose. In 1999, the state Legislature created a five-member joint committee9 to investigate the mismanagement. In October of 2001, the committee10 issued a 200 page report11 identifying general problems, which included improper procedures for airport contracts,12 auditing discrepancies,13 a management culture with questionable ethical conduct,14 and difficulties with the airport police.15

As a result of that report, the Michigan Legislature introduced bills to address the mismanagement issues. Before that legislation was passed, the county executive, the Governor, and business leaders reportedly agreed on the creation of a new authority to operate the airport.16 Apparently, that agreement culminated in Senate Bill 690 which, in turn, was adopted by the Legislature as Act 90.17

Act 90

Act 90 adds a chapter, the "public airport authority act," to the Michigan Aeronautics Code. As indicated in the revised title of the act, Act 90 provides for the incorporation of "public airport authorities" (PAAs) and provides for the transfer of airport management to PAAs. PAAs automatically will be created for only "qualified airports," which are those with ten million or more enplanements18 in a twelve-month period,19 Act 90, subsection 109(n). A local government with airports that are not "qualified," may declare an intention to incorporate a PAA, subsection 110(3).20 A PAA will be considered a public agency of the local government: "Except as otherwise provided under this chapter, an authority created under or pursuant to this section shall be a political subdivision and instrumentality of the local government that owns the airport and shall be considered a public agency of the local government for purposes of state and federal law," subsection 110(1).21 A PAA also appoints the airport manager, subsection 110(1).

A PAA, in turn, is governed by a board that consists of seven members, subsections 109(d), (e). The Governor appoints two board members, the executive officer of the local government (in this case, the Wayne County Executive) appoints four members and the local government that owns the airport (in this case, the commission) appoints the final board member, subsection 111(2). The initial appointees will be allotted terms of two to eight years, respectively, with later full-term appointments to be six years, subsection 112(1), and board members may not serve more than two terms, subsection 112(2). In general, board members may not have ties to the airport or a conflict of interest, subsection 111(5). The board appoints a chief executive officer, who then appoints a chief financial officer, who will be responsible for receiving all monies. Subsections 111(8), (9). Other sections of Act 90 pertain to board meetings and various policies.22 Act 90 also sets forth the financial aspects of PAAs, including methods of raising revenue and bonds.23

Once a PAA is created, the local government that owns the airport must not impede the PAA's exercise of powers, must refrain from selling or transferring airport facilities without the PAA's consent, must cure any defects in title to airport facilities, must grant any necessary easements or licenses, and must maintain the airport roads, subsection 118(3). Further, if the PAA so requests, the local government must provide transitional services regarding the airport operation until the PAA assumes those services; the PAA will pay the government for those services, subsection 118(4). When operational jurisdiction has been transferred to a PAA, the legislative body of the local government may, with the PAA's consent, pledge its full faith and credit for the obligations of the PAA, advance funds to the PAA, and grant or convey real or personal property to the PAA, subsection 125(1).

Finally, § 125c is a severability clause and provides:

If any portion of this chapter or the application of this chapter to any person or circumstances is found to be invalid by a court, that invalidity shall not affect the remaining portions or applications of this chapter, which can be given effect without the invalid portion or application, as long as the remaining portions are not determined by the court to be inoperable; and to this end, this chapter is declared to be severable. [Act 90, § 125c.]
The Transfer

In August of 2002, the Federal Aviation Administration (FAA) issued an airport operating certificate to the WCAA, thus setting in motion the "approval date"24 process pursuant to Act 90. On the approval date, the WCAA assumed the...

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