In this case, intervening defendant, the Wayne Circuit Court (WCC), argued that its judges have the exclusive authority to make the determination with respect to the assignment or selection of a deputy circuit court clerk (hereafter “court clerk”) to serve in a judge’s courtroom, as reflected in Local Administrative
I. FACTS AND PROCEDURAL HISTORY
On March 30, 2007, the union filed a “complaint to compel” against the county, alleging that the union is a labor organization for purposes of the public employment relations act (PERA), MCL 423.201 et seq., that it represents employees engaged in public employment in Wayne County, that the county is the “public employer” of these employees for purposes of PERA, and that the union and the county entered into the CBA at issue, effective December 1, 2000. According to the union, the CBA covered various classifications of county employ
The arbitrator’s written ruling and the CBA provide additional details and enlightenment. We initially note that under the CBA, §10.04, Step 5F, there could be no appeal from the arbitrator’s decision if rendered in a manner consistent with the arbitrator’s jurisdiction and authority as provided under the CBA, and the decision was deemed final and binding “on the Employer, on the employee or employees, and the Union.” Pursuant to §§ 17.01 and 17.02(A) of the CBA, when there exists an intradepartmental job vacancy resulting from the creation of a new position, a transfer, a resignation, a termination, a retirement, or other means, “an employee who holds the same classification
Per the contract language!)] a vacant position is to be awarded to the employee, in the section of the division having the vacant position, who (1) holds the same classification, (2) has completed one year of service within the division and (3) elects to exercise his or her seniority. Under the CBA, subordination of seniority is permitted only upon a determination that a senior employee is not qualified for a job. There is no contention in this matter that any of the court clerks lack the knowledge, skills and ability required to serve in any courtroom at the [Lincoln Hall of Justice] LHJ. Absent some ambiguity in the contract language at issue, the claim of a past practice is unavailing to modify a clear promise.
The County opines that prior to the instant matter the Union had not grieved or protested the County’s restriction of the applicant pool for court clerk vacancies in judge-led courtrooms; thus, it may he found that the Union has acquiesced in the County’s practice. One of the rules of contract interpretation related to the use of custom and practice is that a party’s failure to file grievances or to protest past violations of a clear contract rule does not bar that party, after notice to the violator, from insisting upon compliance with the clear contract requirement in future cases. I conclude there is no basis for finding the Union acquiesced in the County’s practice such that it should be held that the parties have, by their conduct, amended the CBA language on filling vacancies. I further conclude that the County violated the CBA when it limited the pool of court clerks who could apply for the ... position.
*74 ... I believe the foregoing discussions about what is required by Article 17 and particularly section [17.02(A) compel] a determination that the County violated the CBA by filling the position at issue with an employee who had less seniority than other interested applicants. Given the findings and conclusions above, the grievances must be granted.
By way of further background, in April 2005, the WCC’s chief judge penned a letter that was delivered to the county clerk, indicating that the WCC would not abide by the arbitrator’s ruling. The chief judge enclosed a draft of a LAO that would supersede the arbitration award and be implemented unless the WCC and the county clerk could come to a consensual resolution. The chief judge noted that the WCC had not been aware of the arbitration proceedings until after the arbitrator’s ruling was entered and that the time-honored practice over the past 30 years had been to allow the judges to choose the courtroom clerks to be assigned to their particular courtrooms. When no consensual resolution could be reached, the WCC promulgated LAO 2005-06, which was issued on June 2, 2005.
LAO 2005-06 provided that upon written request of the chief judge or the court administrator, the county clerk shall be responsible for assigning a court clerk to perform clerk functions in a presiding judge’s or referee’s courtroom, that the judge or referee assigned to a particular courtroom shall notify the county clerk of the person from the appropriate pool of interested, eligible clerks whom the judge or referee approves, and that the county clerk “shall then assign that person to perform court clerk functions in that courtroom.” Additionally, LAO 2005-06 provided that the county clerk “shall not permanently assign to any courtroom or transfer from any courtroom a court clerk without the prior written consent of the presiding courtroom judge or ref
On June 8, 2005, the Michigan Supreme Court’s State Court Administrative Office (SCAO) prepared a letter addressed to the chief judge of the WCC, which advised the chief judge that LAO 2005-06 conformed to the requirements of MCR 8.112(B) and was being accepted and filed. On July 27, 2006, the chief judge of the WCC entered an order regarding LAO 2005-06 that was directed at the county clerk. The order indicated that it had come to the attention of the chief judge that the county clerk “may decline to follow the dictates of LAO 2005-06 in light of [the] arbitrator’s ruling. . . and the terms of [the CBA].” The order mandated the county clerk to comply with LAO 2005-06, noting, once again, that the WCC and its judges control the court
In the instant litigation, which was commenced while the grievances were pending, the union filed a motion for summary disposition, arguing that the chief judge of the WCC lacked the authority to overturn and reject the CBA and the arbitrator’s ruling. The union also contended that the arbitration award had to be enforced because it drew its essence from the CBA. The county filed a response to the union’s motion for summary disposition and made its own request that the court enter an order granting summary disposition in favor of the county. In September 2008, an order was entered allowing the WCC to intervene as a party defendant. In November 2008, an order was entered allowing the union to supplement its previous motion for summary disposition and giving the county and the WCC an opportunity to respond to any supplemental motion. In February 2009, and before any further motions or responses were filed pertaining to summary disposition, the WCC formally filed an answer to the union’s complaint. At the same time, the WCC filed a counterclaim and a cross-claim for declaratory judgment.
In the combined counterclaim/cross-claim, the WCC noted the history already recited by us and also indicated that court clerks are members of the union, that the WCC is not the employer of the court clerks, that the WCC had not been a party to the CBA, that the WCC was not a party to the arbitration proceedings,
Subsequently, the union filed a supplemental motion for summary disposition in regard to its complaint, the WCC filed its own motion for summary disposition, the union filed an additional motion for summary disposition, but this time with respect to the WCC’s counterclaim against the union, and the parties filed responses to the competing motions for summary disposition. We shall explore the nature of the summary disposition arguments in the context of our analysis of the issues on appeal. The trial court heard oral arguments on the motions and took them under advisement. In June 2010, in open court, the trial court rendered its ruling from the bench. The trial court held that the CBA and
The WCC filed a claim of appeal, and on the WCC’s motion, this Court granted a stay pending this appeal or further order of the Court. AFSCME Council 25 v Wayne Co, unpublished order of the Court of Appeals, entered July 20, 2010 (Docket No. 298655). Thereafter,
II. ANALYSIS
A. STANDARD OF REVIEW
We review de novo a ruling on a motion for summary disposition, Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006), constitutional issues, Adair v Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010), the proper interpretation and application of a statute, id., the construction of a court rule, Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008), and questions of law generally, Oakland Co Bd of Co Rd Comm’rs, 456 Mich 590, 610; 575 NW2d 751 (1998). We disagree with the union’s argument that we should employ appellate-review standards applicable to arbitration proceedings or those found in the arbitration section of the CBA. As explained in detail later in this opinion, the WCC was not a party to, and did not participate in, the arbitration proceedings, and thus it had standing to independently attack the arbitration award outside the confines of an appeal of the arbitra
B. DISCUSSION
1. COMMON-LAiy CONTRACT-RELATED LEGAL PRINCIPLES
We begin our analysis with a brief discussion of whether the WCC was bound by the CBA and the CBA-based arbitration ruling under common-law principles associated with contract formation and liability. The WCC was not a party to the CBA, it did not execute the document, and the WCC was not a party in the arbitration proceedings. “It goes without saying that a contract cannot bind a nonparty.” Equal Employment Opportunity Comm v Waffle House, Inc, 534 US 279, 294; 122 S Ct 754; 151 L Ed 2d 755 (2002). Arbitration, which is a matter of contract, cannot be imposed on a party that was not legally or factually a party to the agreement wherein an arbitration provision is contained. St Clair Prosecutor v AFSCME, 425 Mich 204, 223; 388 NW2d 231 (1986); Hetrick v David A Friedman, DPM, PC, 237 Mich App 264, 267; 602 NW2d 603 (1999). In Genesee Co Prosecuting Attorney v City of Flint, 64 Mich App 569, 571; 236 NW2d 146 (1975), this Court stated:
The issue is whether the plaintiff lacked capacity to attack the arbitration award. One not a party to an arbitration is not bound by the award. Ford Motor Co v Wayne Circuit Judge, 247 Mich 538; 226 NW 218 (1929). It*81 follows that a non-participant has standing to attack an arbitration award that makes determinations concerning its property or contractual rights. We agree with this well established rule. See Orion Shipping & Trading Co v Eastern States Petroleum Corp, 312 F2d 299 (CA 2, 1963)..., Sloan v Journal Publishing Co, 213 Or 324; 324 P2d 449 (1958), Carpenters’ Union v Citizens’ Committee to Enforce Landis Award, 333 Ill 225; 164 NE 393 (1928). We, therefore, conclude that the plaintiff has the legal capacity to maintain this action.[3 ]
As acknowledged by the WCC, nonsignatories of arbitration agreements can still be bound by an agreement pursuant to ordinary contract-related legal principles, including incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel. Thomson-CSF, S A v American Arbitration Ass’n, 64 F3d 773, 776 (CA 2, 1995); see also E I DuPont de Nemours & Co v Rhone Poulenc Fiber & Resin Intermediates, SAS, 269 F3d 187,198 (CA 3, 2001). We find that there was no documentary evidence indicating that the WCC had entered into a separate contractual relationship with anyone wherein the arbitration clause or any of the CBA language was incorporated by reference, nor was there any evidence that the WCC had engaged in conduct suggesting assumption of arbitration obligations or that the county was acting as the WCC’s agent for purposes of collective bargaining and arbitration. Thomson-CSF, 64 F3d at 777. Furthermore, there was no evidence supporting imposition of a veil-piercing/alter-ego theory, given an absence of any fraud or indication that the WCC dominated and controlled
In sum, there is no basis to conclude under common-law principles that the WCC was bound by the CBA and the arbitration award.
2. PERA AND INTRODUCTION TO THE INHERENT-JUDICIAL-POWERS DOCTRINE
We continue our analysis with a discussion of whether the CBA and the arbitration award govern the dispute and prevail by operation of PERA. PERA pro
We need not determine which entity is properly designated as the public employer of court clerks for purposes of PERA, or whether court clerks have multiple public employers, because the question is irrelevant in regard to resolution of the particular issues in this case given the circumstances presented. In St Clair Prosecutor, 425 Mich at 207-208, the Court addressed multiple questions, including “whether the circuit court had jurisdiction to decide the arbitrability of an assistant prosecuting attorney’s . . . removal from office under a collective bargaining agreement entered into by the county and the union without the participation of the prosecuting attorney[, and] whether the prosecutor is a coemployer with the county . .. .” The Court found that the county prosecuting attorney and the county were coemployers of assistant prosecuting attorneys for purposes óf PERA; that while a public employer may
Here, with respect to the CBA, there is no dispute that the WCC did not sign the document. Furthermore, there was no documentary evidence showing or suggesting that the WCC was asked or rejected a request to execute the CBA or engage in underlying CBA negotiations, that the WCC was actually involved in negotiations, or that the WCC designated the county as its representative relative to collective bargaining in order to protect its own interests. Moreover, there was no documentary evidence submitted to the trial court indicating that the WCC waived any claimed right to collectively bargain with the union, that the WCC acquiesced in any such waiver, or that the WCC expressed its consent to or approval of the pertinent provisions contained in the CBA.
With respect to the arbitration proceedings, there was no documentary evidence showing or suggesting that the WCC participated in the proceedings, that the WCC and the county joined forces in defending against the arbitrated grievances, or that the WCC designated the county as its representative relative to the arbitration proceedings. Additionally, there was no documen
The union argues that PERA requires parties to collectively bargain on matters concerning the terms and conditions of employment, which includes setting placement, transfer, appointment, and promotion criteria that would necessarily affect the assignment of court clerks to the WCC’s courtrooms. And the CBA encompassed requisite matters by, in part, including provisions on the filling of vacancies, which mandated recognition and contemplation of minimum-service time and seniority. Therefore, according to the union, PERA demands that we honor the act with a holding that the CBA and the arbitrator’s ruling govern the assignment of court clerks and prevail over LAO 2005-06 and any statutes to the contrary.
“The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” Const 1963, art 4, § 48. “Acting pursuant to this explicit constitutional authorization, PERA was enacted by the Legislature in 1965.” Local 1383, Int’l Ass’n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642, 651; 311 NW2d 702 (1981). PERA provides public employees the right to form and join labor organizations, along with the right to negotiate with public employers in
In City of Warren, 411 Mich 642, a promotion provision in a collective-bargaining agreement entered into under PERA conflicted with provisions of a city charter and the firefighters and police officers civil service system act, MCL 38.501 et seq. However, the Supreme Court held that “the contract provision governing promotions entered into under PERA [was] valid and enforceable.” City of Warren, 411 Mich at 649. The Court noted that it had “consistently held that PERA prevails over conflicting legislation, charters, and ordinances in the face of contentions by cities, counties, public universities and school districts that other laws or the constitution carve out exceptions to PERA.” Id. at 655. In Kalamazoo Police Supervisors’ Ass’n v City of Kalamazoo, 130 Mich App 513, 524; 343 NW2d 601 (1983), this Court also acknowledged that “if there is a conflict between PERA and another statute, charter provision or constitutional provision affecting mandatory bargaining subjects, the provisions of PERA and Const 1963, art 4, § 48, must dominate . ...”
MCL 423.215(1) provides, in part:
*87 Except as otherwise provided in this section, for the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising under the agreement, and the execution of a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or require the making of a concession. [Emphasis added.]
“The subjects included within the phrase ‘wages, hours, and other terms and conditions of employment’ are referred to as ‘mandatory subjects’ of bargaining.” Central Mich Univ, 404 Mich at 277. “Once a specific subject has been classified as a mandatory subject of bargaining, the parties are required to bargain concerning the subject. ...” Id. Promotion and appointment criteria, including seniority, as well as grievance procedures, are mandatory subjects of collective bargaining. Id. at 278; Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 55; 214 NW2d 803 (1974).
We agree that the provisions in the CBA that address intradepartmental job transfers and assignments, setting forth seniority and minimum-service criteria, and that address grievance procedures, including arbitration, do concern conditions of employment and are mandatory subjects of collective bargaining. Generally speaking, under the caselaw already cited, a PERA-based contract prevails in most instances even when in conflict with other authorities. However, the WCC invoked its constitutional powers as part of the judiciary in promulgating LAO 2005-06 and in rejecting and failing to heed the CBA and the arbitration ruling. Some of the PERA caselaw already discussed, while not involving the judicial branch’s inherent constitutional
We hold that a PERA-based contract and related arbitration award that infringe on the judicial branch’s inherent constitutional powers cannot be enforced to the extent of the encroachment.
The proposition that PERA must bow to the judiciary’s inherent constitutional powers was made abundantly clear in In re Petition for a Representation Election Among Supreme Court Staff Employees, 406 Mich 647; 281 NW2d 299 (1979). In that case, a union, acting pursuant to PERA, petitioned for an election among certain Michigan Supreme Court clerical employees and proposed a bargaining unit comprised of those employees. MERC issued a finding that it had jurisdiction over the matter and ordered an election. MERC also rejected a separation-of-powers argument, observing that clerical employees did not exercise the powers of any branch of the government. Id. at 662. Our Supreme Court held:
*90 This is a case of first impression. No Michigan or foreign opinion has been cited to us, nor did our research reveal any, where a quasi-judicial agency assumed to bring the Supreme Court before it for adjudication. However, those are the facts of this case... . MERC ... has attempted to take jurisdiction over the Michigan Supreme Court to determine a union representation election proceeding in which this Court would be a defendant.
We hold that Const 1963, art 3, § 2, headed separation of powers of government, precludes MERC’s assumption of such jurisdiction over the Michigan Supreme Court. [Id. at 660-661.]
Although it concerned a dispute between the legislative and executive branches of government, this Court’s decision in Beadling v Governor, 106 Mich App 530, 536-537; 308 NW2d 269 (1981), makes clear that the separation-of-powers doctrine prevails over PERA: “While the constitution expressly permits the Legislature to enact laws for the resolution of disputes involving public employees, Const 1963, art 4, § 48, that provision is inapplicable in this situation since it would otherwise substantially impair the separation of powers clause.”
In Irons v 61st Judicial Dist Court Employees Chapter of Local No 1645,139 Mich App 313, 321; 362 NW2d 262 (1984), this Court recognized the principle that application of PERA to the courts cannot occur if it would “violate the constitutional mandate of separation of powers.”
Accordingly, if indeed application of PERA impinges on the judiciary’s inherent constitutional powers, PERA cannot prevail. We also emphasize that the sections in the CBA generally governing the filling of vacancies and intradepartmental assignments are not rendered null and void by our ruling today. Rather, they are still wholly applicable, except that we ultimately
3. ADDITIONAL STATUTORY PROVISIONS AND CONSIDERATIONS
We begin by providing some background regarding the county clerk and the judicial branch and the interrelationship between the two. “There shall be elected for four-year terms in each organized county a. .. county clerk. . . whose duties and powers shall be provided by law.” Const 1963, art 7, § 4. “The clerk of each county organized for judicial purposes . . . shall be clerk of the circuit court for such county.” Const 1963, art 6, § 14. Consistently with this constitutional provision, MCL 600.571(a) provides that “[t]he county clerk of each county shall... [b]e the clerk of the circuit court for the county.” In Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003), the Michigan Supreme Court noted that, “[u]nder our Constitution, the county clerk serves in the unique posture of being both an executive officer and an officer of the judicial branch.” The Court held:
The constitutionally created office of the clerk of the circuit court must have the care and custody of the court records and can perform noncustodial ministerial functions of the court. The custodial function requires that the clerk act as guardian of the records, providing for their safekeeping. The clerk’s noncustodial ministerial duties are directed by the Court, as the determination of the precise noncustodial ministerial duties to be performed is a matter*92 of court administration entrusted exclusively to the judiciary under Const 1963, art 3, § 2 and Const 1963, art 6, §§ 1, 5. [Id. at 170-171.]
The union cites MCL 600.579(1) in support of the argument that the county clerk has the authority to make court clerk assignments to courtrooms absent approval and acceptance by WCC judges.
In counties having a population of more than 1,000,000 or that shall hereafter attain a population of more than 1,000,000 and that have adopted civil service under Act No. 370 of the Public Acts of 1941, as amended, being sections 38.401 to 38.428 of the Compiled Laws of 1948, the county clerk shall appoint or promote from the classified eligible list of the civil service a chief deputy circuit court clerk and at least 1 deputy circuit court clerk for each acting circuit judge in the county.
We take judicial notice under MRE 201 that Wayne County has a population that exceeds 1,000,000, and it has adopted the county employees’ civil service act, MCL 38.401 et seq., as reflected in Molis Estate v Wayne Co Bd of Auditors, 373 Mich 172, 174; 128 NW2d 473 (1964). As argued by the union, MCL 600.579(1) does not reference any requirement that a judge or court approve the county clerk’s appointment or promotion of a court clerk to serve a circuit court judge. On the other hand, MCL 600.571(c) provides that the county clerk shall “[ajppoint in counties with more than 1 circuit judge or having more than 100,000 population but less than 1,000,000 a deputy for each judge and approved by the judge to attend the court sessions.” (Emphasis added.) In general, the “disjunctive term ‘or’ refers to a
We decline to rule that MCL 600.579(1), which does not reference the need for judicial approval, resolves the dispute in favor of the union, considering that, for the same reasons that we rejected the union’s PERA argument, the judicial branch’s inherent constitutional powers take precedence over the statute. A fundamental and indisputable tenet of law is that a constitutional mandate cannot be restricted or limited by the whims of a legislative body through the enactment of a statute. Stanhope v Village of Hart, 233 Mich 206, 209; 206 NW 346 (1925) (“The provisions of the Constitution clearly point decision herein, and we find no occasion to go to statutory provisions on the same subject[;][t]he Constitution controls . . . .”); see also Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 710; 614 NW2d 607 (2000) (stating that a statute cannot contravene “the dictates of our state or federal constitution”).
We also decline to rule that either MCL 50.63 or MCL 600.571(c), which incorporate a judicial-approval requirement, supports the WCC’s position to the extent that it resolves the case and makes it unnecessary to reach the constitutional issues. See Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993) (“[W]e will not reach constitutional
The union also places reliance on MCL 38.415
4. APPLICATION OF THE INHERENT-JUDICIAL-POWERS DOCTRINE
Having found, generally speaking, that the judiciary’s inherent constitutional powers take precedence over PERA and the other statutory provisions cited by the union, we must now determine whether the act of assigning or selecting a court clerk for courtroom duty is a power that actually falls within the inherent-powers doctrine, so that the judiciary ultimately has the exclusive authority to make the decision regardless of seniority, the CBA, and the arbitration award. We find that Judicial Attorneys Ass’n, 459 Mich 291, and Lapeer Co Clerk, 469 Mich 146, control our analysis and demand that we hold in favor of the WCC.
In Judicial Attorneys Ass’n, 459 Mich at 294, our Supreme Court found that MCL 600.593a(3) to (10) and “parallel provisions of [MCL 600.591, 600.837, 600.8271, 600.8273, and 600.8274] of 1996 PA 374, concerning employees of the circuit, probate, and district courts, are unconstitutional.” 1996 PA 374 provided that Wayne County or a local judicial council created under the act became the employer of WCC
The Court began its analysis by stating that “the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers” and that “[i]f the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.” Id. at 296-297. The critical questions, as viewed by the Court, were whether the “judicial branch’s powers necessarily include the administrative function of controlling those who work within the judicial branch, and, if so, whether the legislatively prescribed sharing of personnel functions delineated in [MCL 600.593a] is sufficiently limited and specific so as not to encroach on the exercise of the constitutional responsibilities of the judicial branch.” Id. at 297. Here, with respect to setting the criteria for purposes of a court clerk assignment and in regard to an assignment decision, there is no sharing of power with the judicial branch, where the CBA, as agreed to by the union and the county (legislative branch), exclusively governs the process. MCL 600.593a(5), which was struck down as unconstitutional in Judicial Attorneys Ass’n, preserved a limited role for the chief judge of the WCC in those aspects of decision-making relative to court personnel, yet the Supreme Court still found the statutory scheme constitutionally flawed. Judicial Attorneys Ass’n, 459 Mich at 302. Again, in the case at bar,
The Court in Judicial Attorneys Ass’n observed that it was well established that the management of court personnel “falls within the constitutional authority and responsibility of the judicial branch” and that “[t]he power of each branch of government within its separate sphere necessarily includes managerial administrative authority to carry out its operations.” Id. at 297. The Court also observed:
Despite the complications of the trial court environment, the case law, taken as a whole, has come to strongly affirm that the fundamental and ultimate responsibility for all aspects of court administration, including operations and personnel matters within the trial courts, resides within the inherent authority of the judicial branch.
“... Employing and managing personnel to carry out day-to-day operations is one of the most basic administrative functions of any branch of government. This Court has already suggested that, pursuant to the doctrine of separation of powers, one branch of government should not be subject to oversight by another branch in personnel matters____”
We agree with plaintiffs and the Court of Appeals majority that [MCL 600.593a(3)] is not a sufficiently limited exercise by one branch of another branch’s power, and therefore that it impermissibly interferes with the judiciary’s inherent authority to manage its internal operations. ...
.. . The judicial branch is constitutionally accountable for the operation of the courts and for those who provide court services .... [Id. at 299-302 (citations omitted).]
The union attempts to make a distinction between the WCC’s having control over the operation and function of the courtroom, which power the union concedes is beyond dispute, and the WCC’s having control over personnel who perform duties in the courtroom. Stated otherwise, the union accepts that a WCC judge can direct the activities of a court clerk once the clerk is assigned to the judge’s courtroom, but argues that the judge does not have the authority to determine which particular court clerk is assigned to the courtroom in the first place. We disagree and hold that the judicial branch’s inherent constitutional powers encompass both the selection of a court clerk to work in a courtroom and the control over the clerk in the courtroom after the selection is made. Controlling a court’s personnel matters and its daily internal operations, which are powers held by the judicial branch as indicated in Judicial Attorneys Ass’n, necessarily include deciding which court clerk will be assigned to work with a judge in the judge’s courtroom. We find that it would be constitutionally unsound to conclude that a judge can dictate the activities of a court clerk once the court clerk is assigned to the judge’s courtroom, but that the judge can have no relevant say in regard to which court clerk will work with the judge on a day-to-day basis in conducting the business of the court.
We reject the trial court’s analogy that allowing the WCC to govern the court-clerk-assignment determina
Under the CBA, as interpreted by the arbitrator, a WCC judge is effectively deprived of any meaningful voice with respect to which court clerk serves in his or her courtroom. A judge has no formally recognized control over the assignment or removal decision; there is an absence of empowerment granted to the judiciary. We acknowledge that the CBA requires the placement of a qualified clerk in a courtroom, but there is no procedural mechanism that requires the county clerk, the county, or the union to take into consideration a judge’s input with regard to whether a court clerk is qualified. If a judge attempted to demand that the county clerk remove a court clerk deemed unqualified by the judge, or if a judge sought to prevent the assignment of a court clerk to his or her courtroom on the basis that the clerk was unqualified, the judge could be wholly ignored without any legal consequences or ramifications. Even when, in the spirit of cooperation, a county clerk works with a judge and respects the judge’s wishes, a disgruntled court clerk can invoke the grievance procedures, possibly culminating in arbitration. And a judge or the WCC, not being a party to the CBA and, under the union’s argument, not having constitutional authority to interfere with CBA procedures, could not become involved in the grievance procedures. At oral argument, when asked what the WCC could do if the county clerk found a court clerk qualified for
Furthermore, Lapeer Co Clerk, 469 Mich 146, lends further support for our conclusion. In Lapeer Co Clerk, id. at 149, our Supreme Court held that a county clerk, serving as clerk of the circuit court, “must have the care and custody of the court records” and “is to perform ministerial duties that are noncustodial as required by the court.” Reviewing historical instances in which circuit court clerks, i.e., county clerks, have been assigned noncustodial, ministerial tasks, the Court stated:
Court clerks [have] ... computed amounts due on bonds, generated transcripts, filed transcripts, entered and docketed judgments, advertised writs of judgment, certified and filed stipulations, received court papers, transmitted certified copies of proceedings to the Supreme Court, certified various court documents, and accepted court filings. Court clerks could not undertake nonministerial functions, such as assessing damages in a contested action, exercising any judicial power over individuals, or taking complaints and issuing warrants. In addition, it was well understood that these noncustodial ministerial functions were subject to change. [Id. at 158-159 (citations omitted).]
The Court further ruled that “the judiciary is vested with the constitutional authority to direct the circuit
We find that the directives contained in LAO 2005-06, which required the county clerk to assign a court clerk to a presiding judge’s courtroom on the basis of the judge’s selection of a clerk from the appropriate pool, constitute noncustodial ministerial tasks relative to the division of duties and the scope and the form of performances within the circuit court. As such, LAO 2005-06 was a proper exercise of the WCC’s exclusive judicial authority under the Michigan Constitution, and it was permissible because it concerned “internal court management,” MCR 8.112(B)(1).
We find additional support for our position in Rutledge v Workman, 175 W Va 375; 332 SE2d 831 (1985), wherein the West Virginia Supreme Court of Appeals considered whether an elected circuit court clerk could remove and replace a deputy circuit court clerk when a judge entered an order prohibiting the change. The elected circuit court clerk had acknowledged that there was statutory authority requiring court approval before her initial hiring decision, but argued that “she has absolute, complete, and unfettered discretion to fire, assign, and reassign personnel in the office of the circuit clerk.” Id. at 377. Similar to the Michigan Constitution, the West Virginia Constitution provided for a unitary court system. Id. at 379, citing W Va Const, art VIII, § 1 et seq. The court, examining New Jersey caselaw that had addressed the issue, stated:
*102 The New Jersey courts have decided cases on this subject and their reasoning is persuasive. The county clerk is the New Jersey equivalent of the West Virginia circuit court clerk. Because these clerks are elected, they have a hybrid status — half county official: half judicial officer. Nevertheless, these clerks are fully answerable to the judicial system. When a conflict arose between the assignment judge, the chief administrator of New Jersey’s county judicial system, and county officials, the court upheld the judge’s constitutional power to administer the judiciary. The court stated:
“The power of the assignment judge to select and assign as his assistants those who satisfy his needs from the coterie of county employees stems from the inherent power of the courts as implemented by R. l:33-3(b). And although these assistants may remain county employees for the purpose of payment of their remuneration, they nevertheless serve under the control and direction of the assignment judge in the unclassified category and at his pleasure.” Matter of Court Reorganization Plan; etc., 161 N.J. Super. 483, 391 A.2d 1255, 1260 (App. Div. 1978) aff’d o.b. 78 N.J. 498, 396 A.2d 1144 (1979).
And since this power to regulate the conduct of the courts is constitutional, it transcends any legislative directives. 161 N.J. Super. 483, 391 A.2d at 1260. In the same manner, the West Virginia Constitution mandates that we, and the circuit court judges administer the judicial system with dispatch. Although the circuit court clerks are more than our minions, the constitution’s mandate for effective justice guides their action as well as ours. They must aid the administration of justice or face censure. {Rutledge, 175 W Va at 379-380.]
The West Virginia court also relied on W Va Const, art VIII, § 9, which established the office of the clerk of the circuit court under the judicial article, to conclude that the circuit court clerk’s duties must be analyzed in the framework of the judicial system. Rutledge, 175 W Va at 380. In Michigan, the county clerk’s role as clerk of the circuit court was also established under the
Later, in State ex rel Core v Merrifield, 202 W Va 100, 109; 502 SE2d 197 (1998), the West Virginia Supreme Court of Appeals upheld that part of a general order which provided that each circuit judge had the ultimate authority to “select and assign as his Courtroom Clerk that individual whom most satisfies his needs from the coterie of deputy clerks.”
We wholeheartedly agree with the analysis and conclusion reached by the West Virginia and New Jersey courts.
5. ALLEGED INFRINGEMENT ON THE POWERS OF THE LEGISLATIVE BRANCH AND ASSOCIATED CASES
The union asserts that LAO 2005-06 violates the separation-of-powers doctrine in that it infringes on the constitutional authority of the county, as a legislative branch of government, to have control over the employment conditions of court clerks as bargained for in the CBA. We first note that the county itself has not voiced such an infringement. Regardless, we do not agree that the assignment of a court clerk to a WCC courtroom is a subject matter falling within the powers of the legislative branch; it is patently a judicial matter. Assuming that the county’s role in generally setting the work conditions and duties of court clerks through collective bargaining is of constitutional magnitude relative to the powers of the legislative branch, the judicial branch must nonetheless be permitted to take control over particular matters when necessary to satisfy constitutional demands, even if closely related to legislative
III. CONCLUSION
We hold that under the judicial branch’s inherent constitutional authority the WCC’s judges have the exclusive authority to make the determination with respect to the assignment or selection of a particular court clerk to serve in a judge’s courtroom. Promulgation of LAO 2005-06 constituted a proper exercise of the WCC’s authority, and the WCC was not bound by the CBA, nor the arbitrator’s ruling, on the narrow issue of courtroom assignments.
We reverse and remand for entry of judgment in favor of the WCC. We do not retain jurisdiction. Considering that our Supreme Court directed us to decide this case on an expedited basis in light of the important issues at stake, we order that this opinion, i.e., our judgment, is to take immediate effect pursuant to MCR 7.215(F)(2). No taxable costs are awarded.
This opinion applies equally to judges and referees, but we shall, for the most part, refer solely to judges throughout the opinion for ease of reference.
Docket No. 300515 pertained to a related contempt proceeding that we need not explore for purposes of this opinion.
The union does not claim that the WCC lacked standing to litigate the issues presented. Moreover, we find that the WCC has standing, given that the CBA and the arbitration award concern the WCC’s courtroom rights and affect its substantial interest in internal court operations. See Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010).
Michigan Employment Relations Commission.
The fact that the WCC was not involved in negotiating the PERA-based CBA does not mean that we forego a PERA analysis and simply conclude that PERA is irrelevant. There is no argument that the CBA is generally invalid, unenforceable, or 'undeserving of recognition. Therefore, we must determine whether PERA principles demand enforcement of the entire CBA.
We are not suggesting that if a court is indeed a party to a collective-bargaining agreement, it can later refuse to honor its own agreement on the basis that the court’s constitutional powers are invaded by implementation of the agreement.
“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.” Const 1963, art 3, § 2.
Const 1963, art 6, § 1, provides:
*89 The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.
The parties apparently accept that the county clerk was bound by the CBA and the arbitration ruling, and the county clerk has not intervened in the suit.
MCL 38.415 provides:
Whenever possible, vacancies shall be filled by promotion. Promotion shall be made from among employees qualified by training and experience to fill the vacancy, and whose length of service entitles them to consideration. The commission shall, for the purpose of promotion, rate such employees so qualified on the basis of their service record if maintained, experience in the work involved in the vacant position, training and qualification for such work, seniority and war service ratings. Seniority shall be controlling only when other factors are equal. Only 1 name, the highest on the list of ratings, shall be certified. The appointing authority shall then appoint the person so qualified forthwith, or elect to malee an original appointment, in which event the procedure for original appointments hereinbefore provided shall be followed.
MCL 38.416 provides, in part, that “[a]ny officer or employee in the classified civil service may be removed, suspended or reduced in rank or compensation by the appointing authority, after appointment or promotion is complete, by an order in writing, stating specifically the reasons therefor.”
Section 14.01 of the CBA provides that, “[t]o the extent they are not in conflict with other provisions of this Agreement, the existing Wayne County Civil Service Rules ... are incorporated by reference into this Agreement.”
We emphasize, however, that this opinion should not be read as a ruling that all remaining provisions of the CBA are constitutionally acceptable, because those provisions are not before us. Further, while we are only concerned with the assignment of court clerks to courtrooms, nothing in this opinion should be interpreted as necessarily limiting its potential application to court clerk assignments.