ASSOCIATED BUILDERS AND CONTRACTORS v DEPARTMENT OF CONSUMER & INDUSTRY SERVICES DIRECTOR
Docket No. 124835
Supreme Court of Michigan
Decided March 9, 2005
472 Mich 117
The Associated Builders and Contractors, Saginaw Valley Area Chapter, brought an action in the Midland Circuit Cоurt against the Director of the Department of Consumer and Industry Services, now the Department of Labor and Economic Growth, and the Midland County prosecuting attorney, seeking a declaratory judgment regarding the constitutionality of the prevailing wage act (PWA),
In an opinion by Justice WEAVER, joined by Chief Justice TAYLOR, and Justices CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
1. An actual controversy exists for purposes of
2. A plaintiff regulated by a criminal statute is not required to submit evidence of a threat of imminent prosecution in order to establish standing.
3. The plaintiff‘s members suffer a concrete, not hypothetical, injury because they either face criminal prosecution for a violation of the statute or must avoid state-funded work entirely. Such evidence establishes the existence of a legally protected interest, causation, and redressibility. There was a justiciable controversy presented in this matter.
Reversed and remanded.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that leave to appeal should be granted in this matter so that the consequences of determining that the plaintiff may bring an action for declaratory judgment may be fully explored after full briefing from the parties and interested amici.
1. ACTIONS - PARTIES - STANDING.
To have standing to bring an action where standing is not expressly conferred by the Constitution or by statutе, first, a plaintiff must have suffered an injury in fact, that is an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical, second, there must be a causal connection between the injury and the conduct complained of, the injury must be fairly traceable to the challenged action of the defendant and not the rеsult of the independent action of some third party, and third, it must be likely, not merely speculative, that the injury will be redressed by a favorable decision.
An “actual controversy” exists for purposes of the court rule regarding declaratory judgments where a declaratory judgment is necessary to guide a plaintiff‘s future conduct in order to preserve his future rights; a court, although precluded from deciding hypothetiсal issues, may reach issues before actual injuries or losses have occurred; the essential requirement is that the plaintiff plead and prove facts that indicate an adverse interest necessitating the sharpening of the issues raised (
Masud, Patterson & Schutter, P.C. (by David John Masud and Kraig M. Schutter), for Associated Builders and Contractors, Saginaw Valley Area Chapter.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitоr General, and Richard P. Gartner, Assistant Attorney General, for the Consumer and Industry Services Department Director.
Klimist, McKnight, Sale, McClow & Canzano, P.C. (by John R. Canzano), for the Michigan State Building & Construction Trades Council.
Schmeltzer, Aptaker & Shepard, P.C. (by Gary L. Lieber and Katherine K. Brewer), and Klimist, McKnight, Sale, McClow & Canzano, P.C. (by John R. Canzano), for the Michigan Chapter of the National Electrical Contractors Association, Inc.; the Michigan Mechanical Contractors Association; and the Miсhigan Chapter of the Sheet Metal Air Conditioning Contractors National Association.
Gilbert, Smith & Borrello, P.C. (by David M. Gilbert), for the Saginaw County Prosecuting Attorney.
WEAVER, J. Plaintiff, the Saginaw Valley Area Chapter of Associated Builders and Contractors, brought this action for declaratory and injunctive relief, challenging
The circuit court denied defendants’ motions for summary disposition regarding the plaintiff‘s claim that the PWA constitutes an unconstitutional delegation of legislative authority and dismissed plaintiff‘s vagueness claim. Defendants appealed and plaintiff cross-appealed. The Court of Appeals reversed in part and affirmed in part, holding that plaintiff could not seek declaratory relief because plaintiff had alleged no “actual controversy” under the Michigan court rule governing declaratory judgments,
We reverse the decision of the Court of Appeals and hold that plaintiff has presented an “actual controversy” so that plaintiff can seek declaratory relief under
I
Plaintiff is the Saginaw Valley Area Chapter of Associated Builders and Contractors. Associated Builders and Contractors is a nonunion trade association with over two hundred members in the construction industry in thirteen Michigan counties.
Plaintiff‘s members—contractors, subcontractоrs, and builders among others—are required by the PWA to pay their workers not less than the wage and benefits
Every contract executed between a contracting agent and a successful bidder as contractor and entered into pursuant to advertisement and invitation to bid for a state project which requires or involves the employment of construction mechanics... and which is sponsored or financed in whole or in part by the state shall contain an express term that the rates of wages and fringe benefits to be paid to each class of mechanics by the bidder and all of his subcontractors, shall be not less than the wage and fringe benefit rates prevailing in the locality in which the work is to be performed. [
MCL 408.552 .]
The PWA provides further that “[a]ny person, firm or corporation or combination thereof, including the officers of any contracting agent, violating the provisions of this act is guilty of a misdemeanor.”
On July 12, 2000, plaintiff brought this declaratory action challenging the constitutionality of the PWA. Plaintiff alleges that the manner in which the prevailing wage is determined under
Plaintiff named as a defendant, Kathleen Wilbur, former Director of the Department of Consumer and Industry Services (CIS), now the Department of Labor and Eсonomic Growth, which oversees the implementation of the PWA. Because the PWA is a criminal statute, plaintiff also named Midland County‘s prosecuting attorney, who is charged with the enforcement and prosecution of the PWA in Midland County, Michigan.
The Saginaw County prosecutor and the Michigan State Building & Construction Trades Council (MSBCTC) intervened by stipulation as defendants. Three union contractor associations, the Michigan Chapter of the National Electrical Contractors Association, Inc. (NECA), the Michigan Mechanical Contractors Association (MCA), and the Michigan Chapter of Sheet Metal & Air Conditioning Contractors National Association (SMACNA), also intervened by motion as defendants.
The Midland County prosecutor and defendant-intervenor MSBCTC filed motions under
On December 15, 2000, the circuit court denied the motions for summary disposition that argued that plaintiff had not met the actual controversy requirement of
Defendants appealed by leave granted and plaintiffs cross-appealed from the circuit court‘s orders. The Court of Appeals concluded that plaintiff had alleged no “actual controversy” under
This Court ordered that oral argument be held with regard to plaintiff‘s application for lеave to appeal.4
II
This case is before us on appeals from orders regarding motions for summary disposition, which we review de novo. Maiden v. Rozwood, 461 Mich 109; 597 NW2d 817 (1999). The interpretation and application of court rules and statutes present a question of law that is also
III
Plaintiff seeks a declaratory judgment regarding the constitutionality of the PWA. A declaratory judgment is “[a] binding adjudication of the rights and status of litigants... [which] is conclusive in a subsequent action between the parties as to the matters declared....”5 Declaratory judgments are procedural remedies. They allow
parties to avoid multiple litigation by enabling litigants to seek a determination of questions formerly not amenable to judicial determination....6
The availability of declaratory judgments in Michigan is governed by
(A) Power to Enter Declaratory Judgment.
(1) In a case of actual controversy within its jurisdiction, a Michigan court of recоrd may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.
(2) For the purpose of this rule, an action is considered within the jurisdiction of a court if the court would have jurisdiction of an action on the same claim or claims in which the plaintiff sought relief other than a declaratory judgment.
The plаin text of the declaratory judgment rule makes clear that the power to enter declaratory judg-
This Court has described the “actual controversy” requirement of
if a court would not otherwise have subject matter jurisdiction over the issue before it or, if the issue is not justiciable because it does not involve а genuine, live controversy between interested persons asserting adverse claims, the decision of which can definitively affect existing legal relations, a court may not declare the rights and obligations of the parties before it.11
The requirement that a party demonstrate an interest in the outcome that will ensure sincere and vigorous advocacy is expressly subsumed in the declaratory judg-
This Court has held that an “actual controversy” under
where a declaratory judgment or decree is necessary to guide a plaintiff‘s future conduct in order to preserve his legal rights....
This requirement... prevents a court from deciding hypothetical issues.13
This Court has emphasized that although the actual controversy requirement precludes a court from deciding hypothetical issues, “a court is not рrecluded from reaching issues before actual injuries or losses have occurred.”14 The essential requirement of the term “actual controversy” under the rule is that plaintiffs “plead and prove facts which indicate an adverse interest necessitating the sharpening of the issues raised.”15
The “actual controversy” and the “interested party” requirements of
“First, the plaintiff must have suffered an ‘injury in fact‘—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.“’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’
Yet without analysis of plaintiff‘s standing under Lee v. Macomb Co. Bd. of Comm‘rs, 464 Mich 726; 629 NW2d 900 (2001), the Court of Appeals panel below concluded that plaintiff was not eligible for declaratory relief because plaintiff had not established “that there was an actual or imminently threatened prosecution of any of its members, nor has plaintiff shown that a declaratory judgment or decree is necessary to guide its future conduct in order to preserve its legal rights with respect to any particular contract or bid.” On this basis, the Court of Appeals held that the circuit court lacked jurisdiction to enter a declaratory judgment. The Court of Appeals аnalysis regarding the availability of declaratory relief under
It has been conceded by the defendant prosecutor that it must enforce the PWA.17 But regardless, neither Lee, supra, nor the plain text of
Plaintiff‘s members suffer a concrete, rather than a hypothetical, injury because they either face criminal prosecution for a violation of the statute or must avoid state-funded work entirely.19 Such evidence establishes the existence of a legally protected interest, causation, and rеdressibility as required by Lee, supra.
Moreover, as a previous Court of Appeals decision addressing declaratory relief recognized:
“A declaratory action is a proper remedy to test the validity of a criminal statute where it affects one in his trade, business or occupation.” To afford a businessman relief in such a situation without having first to be arrested is one of the functions of the declaratory judgment рrocedure.20
We agree with the circuit court that the affidavits submitted by plaintiff articulate
concrete risks of violations of the PWA as a result of allegedly random changes to PWA rates, the lack of definition of PWA projects and the absence of PWA statutory definitions for statutory language that may be material to enforcement of the criminal sanctions.
Further, we agree with the circuit court‘s conclusion that the risks of enforcement of the statute, together with the asserted character of the potential for violations of the PWA, present a justiciable controversy.
Plaintiff‘s affidavits establish precisely the kind of controversy that the declaratory judgment rule was intended to cover.
CONCLUSION
We reverse the Court of Appeals denial of declaratory relief and remand to the Court of Appeals fоr reconsideration and resolution of defendants’ appeal and plaintiff‘s cross-appeal on the merits.
TAYLOR, C.J., and CORRIGAN, YOUNG, and MARKMAN, JJ., concurred with WEAVER, J.
CAVANAGH, J. (dissenting). I prefer to grant leave to appeal in this case; therefore, I must respectfully dissent. Determining that plaintiff may bring an action for declaratory judgment may have ramifications far beyond the prevailing wage act,
KELLY, J., concurred with CAVANAGH, J.
Notes
The commissioner [the Department of Consumer and Industry Services, now the Department of Labor and Economic Growth] shall establish prevailing wages and fringe benefits at the same rate that prevails on projeсts of a similar character in the locality under collective agreements or understandings between bona fide organizations of construction mechanics and their employers. Such agreements and understandings, to meet the requirements of this section, shall not be controlled in any way by either an employee or employer organization. If the prevailing rates of wages and fringe benefits cannot reasonably and fairly be applied in any locality because no such agreements or understandings exist, the commissioner shall determine the rates and fringe
benefits for the same or most similar employment in the nearest and most similar neighboring locality in which such agreements or understandings do exist. The commissioner may hold public hearings in the locality in which the work is to be performed to determine the prevаiling wage and fringe benefit rates. All prevailing wage and fringe benefit rates determined under this section shall be filed in the office of the commissioner of labor and made available to the public.The United States Supreme Court has recognized that
[j]usticiability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the result-ant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought.” [Poe v. Ullman, 367 U.S. 497, 508-509; 81 S. Ct. 1752; 6 L. Ed. 2d 989 (1961).]