Buback v. Governor

1968] BUBACK GOVERNOR. V.

BUBACK v. GOVERNOR. op

Decision' the Court. — — — Equally 1. Officers Removal Constitutional Law Di- vided Court. Appeals declaring Order of Court unconstitutional statute power pro- conferred executive on a court ceeding remove a officer is equally affirmed (Const 1963, 3, 2; 201.7-201.10, divided court art CL § §§ 145). PA amended No

Separate Opinion fob Affirmance. M. Kavanaoh, T. Soubis, O’Hara, Adams, JJ. Separation 2. Constitutional Law — of Powers. government The Constitution divides the into 3 branches provides person exercising that no powers properly belonging branch shall exercise to another expressly provided (Const branch unless in the Constitution 196S, ¡2). art § Judges. 3. Same —Removal Power — power Bach branch has the removal withim that except the case where the removal assigned with a concurrence thirds two legislature (Const 1963, 4, §16, 5, 10, 6, 25, art art art § § 11, 5). art § [I] ^[10] [II] [2, [3-6, [7, 12-19] 5 Am Jur 20 Am 20 Am Jur 8] 16 Am Jur 30A Am 16 Am Jur 2d, Appeal References 2d, 2d, Jur, Judges 2d, Jur Courts Courts Constitutional 2d, and Error Constitutional Law 210 et § §§ fob 24. et Points 104. seq. Law § 902. 219 et Headnotes seq. seq. 209. 380 Mich Assigned to Governor Power State Officers —Removal Arbitrary Agency Exercise Courts — of Re- —Interference moval Power. Supreme with exercise removal Cou/rt of Interference assigned governor power to the or to a has been which arbitrary agency refused, except that an exercise is State of subject judicial power to review. has been the removal Proceedings —Courts. 5. Same —Removal removing primarily is administra- The act an cause for of officer although judicial sense, and, not an in a act such tive of performance by requires it a nature that branch permits appeal thereto. or an of Proceedings 6. Same —Removal —Due Process. Proceedings power assigned by under legislature removal quasi-judicial proceedings, executive branch are potter and the process. must be exercised so as due afford 7. Same —Judicial Power. power power Judicial courts is to hear and determine con- of parties, questions litiga- troversies between adverse and tion, binding judgments. and to malee orders or Proceeding Judges. S. Same —Removal —Probate probate judge part The exercises no in that aof by designation upon by removal him conducted governor findings adjudication because he maíces no and proceeding. Separation 9. Constitutional Daw — of Powers —Judicial Branch. concepts separation powers ju- Constitutional and of of of diciary justice require judge as one court that no shall of powers properly belonging exercise to another branch u/nless expressly provided (Const 1968, 8, %, in the Constitution art § 6, 1). art § 10. Courts —Judicial Power. justice perform All courts but one court the State and of form of solely by judicial power 1). (Const 1963, the exercise art § of Jurisdiction, Powers, 11. Same —Probate Duties. Courts — jurisdiction, powers, duties courts of provided (Const 1963, 6, §15). by shall art be law thereof Law Constitutional Law —Words and Phrases —Provided n —Prescribed Law. “provided means the in the Constitution Phrase law” used legislature job implementation, entire is intended to do the BUBACK V. GrOVEENOR. “prescribed by phrase whereas law" is used in Con- only where stitution details are left planning. overall Separation 13. Same —Removal from Office — Powers. provision political Constitution’s a elected officer of may be subdivision removed in the manner and from office for provided subject provision the causes law held, separation person exercising powers that no belonging properly branch shall to another exercise except expressly provided Constitution (Const 196$, S, 7, 33). art art County 14. Statutes —Constitutional Law —Removal Officer —Separation of Powers. statutory provision authorizing governor Portion to direct attorney general prosecuting or attorney county to a conduct inquiry charges alleged into the as basis removal for any probate a circuit court commissioner or officerbefore appointed by who purposes such held, imposes unconstitutional as it on a commissioner insofar probate judge process in the removal is an function power (Const 1963, 2; exercise the executive art CL 1948, amended). 201.7 as seq., § et County Separation 15. Same —Removal of Officer — of Powers. Invalidity portion a providing the statute the removal of of for county by proceedings, which at the of direction the officer of governor may by attorney general prosecu- be conducted the or ting attorney a probate circuit court commissioner or before judge, preclude delegation does hearing the to conduct a within government, the executive provided by branch where of (CL 1948, statute seq,, amended). 201.7 et as § Separate Opinion for Reversal.

Dethmeks, Kelly, Black, C. and Brennan, J., JJ. Separation 16. Constitutional Law — of Powers. requires Constitution powers that the be divided into person exercising 3 branches with no 1of branch to belonging exercise branch, except to another im, expressly provided as (Const 1963, 3, Constitution art §8).

17. Same —Probate Courts —Jurisdiction—Powers—Duties. provides The Constitution jurisdiction, powers, and duties courts provided by (Const be law 1963, 6, 15). art 209. Courts —Ratification—Effect.

18. Same —Probate plainly Constitution, people ratifying have com- By guardian primary municated, our to to Constitution, their desire that left free judges. powers, jurisdiction, duties provide County Officer Law —Removal 19. Statutes —Constitutional —Separation of Powers. authorizing governor attorney to direct provision Statutory county attorney in- to conduct an general prosecuting a or a charges alleged removal quiry basis into for any probate or commissioner circuit court a before officer who purposes governor held, by such appointed for plainly legislation authorized was constitutional, because the 1948, 1963, 6, 15; CL 201.7— (Const art the Constitution 145). 1960, 201.10, No BA as amended Complaint Appeals in the nature of in Court of George against L. Peter Buback mandamus Romney, Attorney Kelley, Prank Gen- Governor, Judge Castellucci, for and Francis A. Probate eral, Macomb County, prevent holding of a removal prior completion prose- criminal arising of same circumstances. Court out cution authorizing Appeals statute held that attorneys attorney general prosecuting or direct hearing charges probate judge before on conduct an im- court commissioner was unlawful circuit position officers. executive functions on January (Calendar No. Submitted 51,738.) March Af- No. Decided Docket equally court. divided firmed Joseph E. Barris, Ivan W. Louisell and plaintiff. Kelley, Attorney Robert A. General,

Franlc J. Derengosld, Mul- General, and William J. Solicitor Attorneys laney Freeman, and Stewart H. Assistant General, for defendants. Buback GoveRNob. (for affirmance). originally Plaintiff Adams, prevent

sought holding proceed- to of a removal seq., (Stat ing under CL 201.7 et 1948, amended Supp § Ann Ann 1956 Rev and Stat 1965 Cum 6.697 prior seq.), completion prosecu- et of a criminal against arising tion him from the same circumstan- It ces. was claimed that hold a such plaintiff’s privilege against would violate self-in- procedural deprive proc- him crimination due prosecution The criminal ess. has been dismissed. injunctive Plaintiff’s claims for and other relief, Appeals, denied the Court of are now moot and will not be considered. rehearing Ap-

Upon a motion Court question separation peals, as to constitutional The Court raised. held: was (Stat provisions 1948, 201.7 Ann CL 6.697), Supp authorizing 1965 Cum direct general attorney attorney prosecuting charges alleged hearing a on as the to conduct removal of officerbefore basis for judge or circuit court commissioner is an unlawful imposition of executive functions on officers provisions Michigan of the in contravention § 2. Constitution of art opinion authority “This is based on the and reason- ing following Slattery (1945), of the cases: In re Transport and Local Workers Judge (1948), America, Union v Genesee Circuit exposition reasoning 322 Mich 332, and the approved opinion in those cases as set forth in the In Justice Cardozo the case of the matter Rich- 655). (160 ardson, 247 NY 401 NE See, also, Town- ship Township Dearborn v. Dearborn Clerk (1952), Appeals. 334 Mich 673.” Order Court of officiallyreported. Not Appeals The decision of the Court of was cross- appealed general. attorney this Court Mich Adams,

The Statute. seq., (Stat as amended Ann et 1948, 201.7 CL Supp § 6.697 et Ann Cum 1956 Rev Stat governor may provides seq.), at direct the that the attorney prosecuting general torney or the charges inquiry made, into “to conduct * * * proceed examination at which he will charges before some in relation to such witnesses of * * * any judge or circuit court commissioner appointed may who applica supplied].” Upon purpose [emphasis such pro the commissioner officer, tion of the accused require the indorsement witnesses shall bate subject to the same rules as in the same manner required in cases. He shall observe the criminal chancery cases and rules of evidence followed shall authority questions procedural on rule law. have taking depositions authorize the He provided manner as for civil cases. In the same present Romney case, indicated that the G-overnor delaying question of re commencement solely by proceedings was one be decided moval Judge Castellucci. Probate Provisions.

Constitutional provides: Article 3 of the 1963 Constitution government are divided into three “The legislative, judicial. executive and No branches: exercising powers person of one branch shall exer- powers properly belonging cise to another branch except provided expressly in this constitution.” (Emphasis supplied.)

Immediately following legislative article branch, the branch, executive respectively are dealt with in articles and 6. 4, 5, Buback GovehNok. Opinion by Adams J. as follows: reads 6, 1, Article the State vested exclu- justice shall he divided sively in court one appeals, supreme one one court court, into trial jurisdiction general as the cir- known court probate of limited court, and courts court, cuit may by legislature a jurisdiction itwo-thirds ing establish that the vote of the to and serv- members elected (Emphasis supplied.) house.” in each § reads as follows: 6, 15, Article purposes organized county for “In each legislature may probate The a court. shall be there of more than court districts or alter create by approved county county in each affected one a if voting question. majority on the electors the legislature may provide the combination of officeof any judicial probate judge with the limited office jurisdiction supple- with within a provided jurisdiction, salary mental law. powers judges probate court and the and duties the provided by They shall be law. shall thereof juvenile original jurisdiction in have all cases of delinquents dependents, except otherwise provided by (Emphasis supplied.) law.” provides § Article 6, 19, as follows: supreme appeals, court of cir- court, the desig- court, cuit court and other courts legislature nated as such shall be courts record and each and a shall have common seal. Justices persons courts record must be who practice per- are licensed to in law this State. No appointed son shall be elected or ato office reaching age years.” (Emphasis after of supplied.) power

The removal with which are con- we here government cerned contained in local arti- article, § cle 33: Adams political “Any subdivision officerof elected and for the in the manner from office removed provided law.” canses authority to remove from officeis dealt

The broad Michigan Con sections with various example, with article deals For stitution. expel power house of each with the 6, 25, Article deals member. on remove a concurrent resolu elected to and of the members tion of two-thirds legislature. serving Article house of the each * governor’s power to remove 5, 10, deals with legis except appointive officer, elective or State judicial. service), pro (civil § 5 Article lative * * * “No classified : removals vides religious, partisan racial or shall made for service considerations.” general, the that, from above It be seen will has for removals from office constitutional scheme assign re to each been moval power In the case of within that branch. exception, assigned power judges, removal is an the concurrence two chief executive with of to the thirds legislature. Other removals from office judicial of this branch, within the decision Court (1962), —Gray v. Common Pleas Court 366 Clerk judicial Mich 588 — are a function. Absent constitu implied power the removal is in all restraint, tional operations governmental v. Common — Hawkins Rapids City (1916), Mich Grand 192 Council normally specific is in a exercised 276 — but part operations State powers of that branch. * also, supreme See, art court shall Const §4: remove judge.” Reporter. power to

have — v. GoveeNou. Bcjback Adams Cause the Executive Removals for and Exercise Judicial Power. power assigned has

Where the removal been agency, or to a State this Court has refused directly power. with the exercise of that interfere Clay (1889), 411; v. 74 Mich Fuller v. Attor Stuart ney (1893), Speed 96; General 98 Mich v. Detroit (1894), Attorney Attorney Council Mich 360; Common General v. Jochim

(1894), 99 Mich 358; Berry (1894), Attorney General v. Mich 379; Gen (1894), eral 380; v. In Hambitzer re Fred (1938), City 262; ericks 285 Mich Lilienthal v. Wyandotte (1938), rehearing 286 Mich 604, denied arbitrary an However, exercise removal power subject People, review. ex rel. (1861), Lord Andrews, v. 9 Mich Dullam v. 227; (1884), City 392; Willson Wyandotte, 53 Mich Lilienthal v. Schnipke supra; (1968), McDonald v. 380 Mich 14. why

The reasons role courts removal proceedings exceedingly why is an limited one and a court should avoid involvement were examined Koeper Railway Detroit Street Commission (1923), again 222 Mich in In re Fredericks, supra, 265): (p in which this Court said * * * removing pri- [is] “The act of for cause marily although judicial and, administrative in a requires not an sense, act of such a nature that it performance govern- branch of the permits appeal ment or thereto.” The removal here under consideration was assigned by to the executive branch government. though of State Even anis executive one, removal from officefor cause is gmsi-judicial proceeding. also a The must process. be in exercised such fashion as to afford due example, Speed supra; See, Dullam Willson, v. v. Ijy Adams J. supra; Attorney Council, General

Detroit Common Bairley (1920), Fredericks, In 120; 209 Mich. re City Wyandotte, supra. supra; Lilienthal v. in that it is be conducted fact mere gwsi-judicial not make it less fashion does proceeding. executive branch Within executive are such commission, tax as the State

bodies appeal compensation and the cor board workmen’s performing quasi- appeal poration board, all tax judicial functions. sentence of article that the second

It noted be process 1963 Constitu- section 1, 17, the due reads: tion, corporations right firms, individuals, “The of all just voluntary treat- fair and associations to and legislative in- and executive the course

ment vestigations infringed.” hearings shall not comment on this sentence The convention 15): people (p address to the states guar- incorporates a new sentence second just legislative of fair treatment antee recognizes investigations. This the ex- executive investigations tent to have tended to which such language pro- quasi-judicial assume a character. impose posed second sentence does not cate- gorically guarantees procedural process due upon investigations. Instead, such it leaves legislature, finally courts, executive and developing procedure appro- the task rules fair priate guarantee investigations. does, however, to such It just fair and treatment in such matters.” (Emphasis supplied.) permits proceedings

The statute removal by designated gov- conducted designation part ernor. If such a of the made, is required assigned by probate judge. him to the The examination is an v. GOVERNOR. 219 Buback by Opinion Adams part integral of tibe executive removal rulings it is conducted. Tbe matter whom no regard to tbe indorsement with tbe questions of evidence all bear or on of witnesses proceeding. importantly on tbe Michigan tbis Court bas cases, earliest From judicial power: clearly defined generally power “By judicial of courts is un tbe power and determine contro bear tbe derstood questions parties, and in adverse versies between People (1859), litigation.” v. 6 Daniels 388. only authority decide, “It not but is tbe inherent judgments, binding or which con to make orders power.” Underwood v. stitutes McDuffee (1867), Mich 368. 15 Hoyt propositions

These were affirmedin Bisser v. (1884), Micb 185,192, wherein there is tbe follow- ing judicial power: discussion of “By judicial power tbe article 6 of our Constitution Supreme in courts, in in Court, is vested circuit justices peace. courts, in of tbe municipal is also authorized to establish in cities, courts and courts of conciliation. Tbe permanent courts referred ganizations or- to in tbis article are justice; for tbe administration of apply it bas been tbe held that term does not to those special occasionally law calls tribunals tbe particular exigencies, existence for into and which cease to exist when cases In the occasion ceases. such judicial power lodged to a limited extent is specified purposes, tbe bands of different officers require. to be called into action as occasion Tbe power excep- exercise of tbis such tribunals is recognized only tional, and bas been and held valid they because were under statutes in force before tbe adopted, Constitution was and which it was believed abrogated were not tbe it; intended to be because proceedings preliminary were collateral Mich Adams J. principal proceedings, and where the officer does adjudication rights on the render a final parties. Rowe, Rowe v. Mich 356; Shurbun v. Hooper, People, 503; 40 Mich Daniels v. 6 Mich 381; Edgarton Hinchman, Mich 352; Streeter v. Paton, judicial power 7 Mich 341. But the exercise legal only upon its strict sense can be conferred courts named Constitution. The authority referred to is the to hear and de binding cide controversies, and to make orders and judgments respecting People, them. v. 6 Daniels 381; Mich Underwood v. 15 Mich McDuffee, 361.” (1932), See, also Black Goetz v. 256 Mich 564, 569, judicial power. 570, for further definition of probate judge findings Since the makes no and adjudication proceeding, in a removal it is evident judicial power. that he does not exercise attorney general argues nonjudicial that roles assigned past pro- have been to courts in the and to particular. bate courts in Judge (1885), Kent In Houseman v. Circuit an act for the construction of drains 364, 367, was held unconstitutional because: imposes upon the court are “The duties it belong not in their but to the admin- nature, sending government. istrative branch of the out persons surveyors or other to make examination surveys place re-levy ones, or are each and all to taxes in of invalid pertain which do not to the acts government. branch of the design of the Constitution is that each of the kept, government three of the shall so branches be practicable, separate, far as and that one of the de- partments by shall not exercise the confided Any legis- that instrument to either of the others. authorizing lation, an therefore, invasion this de- sign, of upon judiciary conferring and the exercise powers belonging to either of others, cannot regarded valid.” as V. GrOVEENOR. BuBACK Adams Speed (1886), pro Mich. In Locke v. compel ceeding to a circuit mandamus to fees of a coroner for incident consider the account inquest, it was said: to duty or circuit right “Both approval in this asked for order to make the court ascertain, do able I have been far so case, application; questioned this until have been seem urge that it was late now too think it is I require such serv

incompetent ice of for the Henkel, 60 Mich courts. Goodall circuit legislature, 3). (headnote action of the Such acquiescence long and continued followed people violation open palpable courts, unless and the provision clearly expressed of the of some I think control. should be allowed to Constitution, provided clause, ‘otherwise comeswithin the the case by eighth article contained the section law,’ referred to. above of the Constitution attorney general suggested it “It is present design of the framers Consti- was departments that the duties of three tution kept separate should the State possible, appertaining and that those far as required departments the should not be of other unquestionably judicial. This is true. Houseman Judge, Kent 58 Mich 367. But the act Circuit preliminary required character, done is in its judicial, to a nature, and, and in its certain extent, judgment, properly my in comes the more under department than of under either of duties that others.’? contrary, County Wayne

To the Allor v. Audi (1880), tors 43 Mich 76, 96, this Court stated: “Upon enough subject purposes for that it is most say functions, that court, to can be no in the of its exercise subjected lawfully to the control or interfer- authority, any executive or ence can or ministerial any except purpose for from receive directions [Mar.' Mich

Opinion, Adams J. such other courts as are authorized the Consti- ‘superintending tution to have control over inferior right courts.’ No court has a to allow other in- terference to it.” submit Removals Elected Political Officers of Subject Subdivisions Cause Are Separation Doctrine Powers. The above cases and numerous others were decided previous strengthen- to the 1963 Constitution. The ing judiciary by par- of the entire that Constitution, ticularly probate courts, makes doubtful their present applicability and renders untenable the at- torney general’s claim that courts are a variety different than other courts.

The Constitution of 1963, article con- 3, 7, repugnant tinues in force the laws statute not to its provisions. The fundamental issue is whether CL January 1948, 201.7, as amended, survived after 1, 1964, the effective Constitution, date new and continues in force.

(a) Constitution of 1835. separation (article 3) article specifically proscribe Constitution did depart- individual conduct since it that asserted ment shall never exercise another department. (article 6) Under that Constitution judicial power Supreme was vested in one Court legislature might and such other courts estab- provided lish. Section of that same article court of shall be established each of the organized juris- counties. It made no mention diction of that court.

By legislature provide article was to law for the removal of officers. The placed all to remove county county except judges, judges pro- officers d. Buback GoveRNoe. Opinion by Adams, J. county clerks. If 15, bate RS cb 6. charges prosecuting attorney, did not involve the inquiry. could direct him to conduct Examination of witnesses was to be before some county judge. judge county made no decision charge. on the merits of the removal He certified transcript prosecuting delivered it to the governor. attorney for transmittal county judge Constitution, Under had legislature judicial power been endowed with separation but the article was so ob- scurely application worded as to leave doubtful its to individual action.

(b) Constitution of 1850. separation (article 3) article proscription the 1850 Constitution east the in terms personal by providing person conduct that no belonging department pow- one shall exercise the properly belonging “except ers to another expressly provided cases in this Constitution.” The word meaning “cases” as there used had the same judi- situations conditions. Under article 6 the Supreme cial was in vested Court, cir- justices cuit courts, and in courts, peace.

By article 6, 13, courts of to be were organized established in each of the counties. jurisdiction, powers and duties of such courts shall prescribed law.”

Removal of officerswas covered article provide.by 12 which stated that the shall by county law for the removal of officerelected in such manner and for such it shall cause as to seem just proper. County courts were discontinued. A circuit court commissioner substituted for was county judge person as the whom examination before proceedings might held. witnesses removal By PA No PA No See 380 Mich 209. Opinion by J. Adams, probate of added as an was officerbefore whom snob examination could be held. appear adjudicated

There be no cases or re- ported bolding decisions under tbe 1850 Constitution probate properly desig- that a could not be legislature nated whom officialsbefore in

the evidence a removal could any question held nor are was raised. there cases in (c) Constitution 1908. separation powers (article 4)

The article this was Constitution the same as the 1850 Con- By stitution. article 7 was vested Supreme probate in one Court, courts, courts, circuit justices peace. A modification made was relating legis- to inferior courts established lature. jurisdiction dealing pro- §7,

Article with changed substantially bate was courts, from the cor- provision responding in the 1850 Constitution. The Constitution of 1850 stated: jurisdiction, powers and duties such courts prescribed by shall be law.” language In the 1908 Constitution the read: county organized judicial purposes, “In each jurisdiction, there shall be a court. powers judges and duties of such courts and of the prescribed they thereof shall law, and shall jurisdiction original juve- also have all cases of delinquents dependents.” nile adoption After the of the 1908 Constitution, Supreme Court held that under section 13 of article authority prescribe plenary 7 the had and duties of the courts and the (1918), In re Merrill thereof. 200 Mich 248. v. G-oveeNOR. Bitbace Adams, "by Opinion, provision county for removal

Tlie officers in slightly § was different from the 9, 8, article corre- sponding provision in the 1850 Constitution and, in officer elected substance, said from officein such he removed manner and for prescribed by he such cause as shall lawn (d) Constitution language relating separation 2) changed (article 3,

article and made more precise. Under the 1908 Constitution there was an question opportunity meaning to the of the words powers properly belonging [depart- “the to another supplied).” (emphasis ment] Did this mean the power relating objective? any particular whole to present proscription Under Constitution is powers belonging against properly exercise of “powers” to another inclu- branch. The term is all meaning sive, that which is exercised all components, stages, steps. itsof Under “except exception in the read cases Constitution, expressly provided.” [Emphasis supplied.] Now exception “except expressly provided reads [Emphasis supplied.] this Constitution.” This change to removes doubt as what was a ease or exception by situation to be intended an covered as language found elsewhere in the 1908 Constitution. language exception now means that the must be expressed in the Constitution itself, whereas the lan- guage of the 1908 Constitution could have been legislature might construed mean the to deal with being exception. “the situation” as an Under the language Constitution, the makes it clear exception crossing relates to the over from one powers. another in the exercise of Conse- quently, where the is authorized it act, required separation powers is conform concept being fundamental and basic and Mici-i 209. Adams, Opinion by

grant exception only when it find authoriza- .can tion Constitution. judicial time,

For the first article of the 1963 (article speaks 1)§ judiciary Constitution justice. in terms of one court of That one court of justice is the branch. The courts which up justice make the one court of do not exercise jurisdiction. corresponding identical or its Each has particular level of administration. But justice since all courts form but one court of to which judicial power granted the tion, has been the Constitu- perform solely it seems clear all courts judicial power. separa- exercise Therefore the powers apply tion of article would to a court as fol- person (a judge) powers exercising (judi- lows: No power) (the justice cial of one branch court judicial branch) constitutes the shall exercise properly belonging to another branch. It then be- necessary exception (expressly comes look for an provided) in the Constitution.

The Constitution of 1963does not define the entire jurisdiction responsibility courts. This legislature left to the article 15: jurisdiction, pro- and duties of the pro- bate court and of the thereof shall be by vided law.” style drafting

The committee on of the consti- tutional convention of 1961made a distinction in the “prescribed by use of the words law” and the words “provided by “provided by law.” Where law” is legislature it is used, intended that the shall do the job implementation. only entire of de- Where the legislature tails were left planning, the and not the overall “prescribed the committee used the words Record, law.” See Official Constitutional Con- pp 2673, vention 1961, 2674. v. GovbRNob. Buback Adams, provision of the 1963 Constitution last above placed responsibility

quoted legislature the on the grant authority draft did law but de- parture requirements proscriptions from the It does not Constitution. have the effect of disregard separation permitting article. power, appearing

The removal it does government, might imple- on article local have been solely mented on the level local involving any without of the three government. Speed branches of State See v. Detroit supra. particu- Council, Common when However, power assigned gov- lar removal is to one power ernment, that must exercised within separation if branch be not removal the doctrine of is to meaningful. The framers the Constitution did

expressly provide joint for the exercise

power by govern- two or more branches of express provision ment. Since there is no to this it effect, must be concluded that article is subject provisions to the of article seq., (CL amended)

The statute 201.7 et pass does not the survival under test the 1963 Consti- imposes judge tution. It on a a function process partial in the removal is a exercise of legislature by executive because the statute placed obligation responsibility for removal governor. officers The function of hearing respondent, including can witnesses, performed governor. judge If a appointed by that func- undertake governor’s tion, becomes the substitute. general attorney in his in com- brief, states menting (1928), Richardson on In the Matter 655): (160 NY 401 NE hestitancy conceding great no

“We would have its at least as first Case, Richardson force Mich Adams, Michigan ground the had au- if statute decision, (and acted) governor he had name so to the thorized ques- purpose judges in for the circuit our (Emphasis supplied.) tion.” reasoning’ Judge Benjamin Car- forceful Ap- as found the Court of Richardson, dozo in Michigan pro- applies peals, applicable It here. is system single part a court which are bate courts of circuit court commissioner the office as well as to presently long constituted con- that officeas as to exist. tinues placed superintending of all courts is control the'Supreme To hold in Court. thé Constitution g-uasi-judicial, administrative,

that executive, upon at will functions can be shouldered ministerial the ignore government would branch of judiciary strengthening that occurred permit chief executive To 1963 Constitution. among pick choose statewide participant selecting re- in an executive require proceeding be to moval judge would powers belonging to the executive exercise government. of State branch opinion, upon reasoning this the or- Based Appeals af- is affirmed. der of the Court Such any way affect- construed as in firmance is not to be ing seq., validity et 201.7 CL authority to con- insofar as the executive amended, set for cause is therein a removal duct Bairley, supra), Attorney (see nor General forth only governor, or the it be construed should governor in the absence of lieutenant from the hearing per- such conduct State, must authority delegate the executive within where son provided by as is statute authority exemplified by delegation such No (PA 1937, criminal extradition act uniform 229 Btjback GoveRNOb. by Adams, J. seq. (Stat § Ann 1954 28- Rev et [CL 780.1 1948, seq.)]). .1285[1] et JJ., con- and SouRis, T. M. O’Haea, KavaNagh, J.

curred Adams, with accept (for reversal). risk of I J. Black, discussing obscuring it. Exclusive the obvious any be brief. quotation, will in event the discussion of the Constitution sections need read two We but against and attack below as belated ascertain, validity of presentation plaintiff’s here,1 casual 1960, PA amended §§201.7-201.10, as 1948, CL 201.10, Ann 1956 (CLS §§ Stat 201.7, 1961, 145 No 6.697-6.700). Supp §§ Cum Ann 1968 and Bev Stat pres- emphasized by the sections, constitutional The follows: read as writer, ent divided are 2. The “Sec. judi- legislative, and executive branches; into three exercising powers branch person of one No cial. shall belonging properly to another exercise expressly provided except in this constiUi- 2). (Const art tion.” organized county In each “Sec. 15. legis- probate

purposes a The court. there shall be may probate court districts create or alter lature approved county in each affected if 'more than one by majority voting county on of the electors legislature provide question. com- for the. with bination office of jurisdiction officeof limited within provided by supplemental salary law. The with jurisdiction, poivers and duties court provided by and shall be km. thereof They original jurisdiction shall in all cases have Appeals, See review of record made in the con Court of 655), (160 sideration of In the Matter NY N33 Bieharclson, 347 post. both Opinion by Black, dependents, except delinquents

juvenile as other- (Const 15.) provided by law.” art wise upon probate judges legislature has cast certify, duty proceed power and when directed governor, 201.7- as mentioned sections provided. did or did 201.10 Whether probate judges sections to vest not intend with executive those present is of no moment. That unconditionally body to enact such was authorized quoted express exception sec- investiture, quoted section tion and the underscored sentence prolixity could 15 considered. No tome esoteric certainly possibly doubtful; render that conclusion great which mass mankind the minds of that adopted then the Constitution considered and appellate goes about the 1963. And when this Court parts part any allegedly applying or task of abstruse it obvious of that is “the sense most Constitution, understanding” us; not to common that concerns delegates, visionary usually conflictingnotions of the professors, legal peerage. of the and intellectuals justices told At least that is what eminent have us acceptance enduring far. with thus Mr. Justice Story: designed metaphysical are not for “Constitutions expression, logical for subleties, or niceties for propriety, meaning,

critical for elaborate shades of philosophical ju- for the exercise of acuteness or They practical dicial research. are instruments of a nature, founded on the common business of human adapted designed life, commonwants, to for common understandings. use, for fitted common people people adopt peo- make them, them, ple supposed help must be to read them, with the presumed common sense, cannot be to admit in any meaning them any extraordinary recondite or [5th gloss.” (1 Story, p 345.) Constitution ed], 451, Btjbaok v. Governor. by Black, (Mr. Cooley con- Justice Campbell Mr. Justice curring) : concerning lan construction, rule of “The cardinal meaning would apply which it guage, it that is popular in all cases

naturally convey mind, nega is propriety not construction of such where instruments In all rule for confirmation law. tived some settled people are which submitted validity from their derive all which themselves, and peculiarly nec popular is a essary; right their own will.” 406, such construction vote, they defrauded for would be otherwise according own to frame their (People 14 Mich [1866], Dean v. 418.) May Topping (quoted Cooley Mr. Justice 850]): [64 [1909], W Va SE people by the made for “A is Constitution given interpretation people. it he that should great minds, that which mass is reasonable give people as the themselves, it. ‘For the Constitution does would from con- not force the who derive its people rati- framed, vention but from the peo- it, fied ple, to be arrived at is that intent supposed they and it have to be meaning in the looked words dark or abstruse they accepted employed, hut rather that have them most to the common un- sense obvious derstanding, and ratified instrument, be- conveyed.’ designed lief that that was sense to be (Cooley’s [6 1890], Constitutional ed, Limitations p 81).” (Emphasis supplied by present writer.) eh 9, By quoted people plain- 2 sections and 15 the have ly primary communicated, the third as guardian of our their desire that Constitution, “jurisdiction, provide left free to expect probate judges. that I and of duties” high English any of school A, B, or C student Mich 232 [Mai*. by Black, government (if rest), experience not all the would difficulty reaching little in that conclusion after hav- ing assigned reading, parsing been the 2 and of task and analyzing sections ascertain whether the legislative power electors intended restrict the Mapp claimed in this case. It is true, still said (1961), (81 v. Ohio 367 US S 1684,1693, Ct 944), L ed 2d ALR2d that “There nois war between Constitution and com- mon sense.” phrases trouble is here not with the words and

employed in sections 2 and 15 for or, that matter, any section of the article. There no ambiguity sections, these so far as con- question presented cerns the constitutionality statutory provisions. difficulty, cited Our rather, style “ismy” highly lies with that fastidious new erudition which accepts nothing as settled and busily ways searches complexify for to confound and quest certainty. the law’s The once understood accepted purpose quest bring was to great potentially about determination of the bulk of litigable upon dependable usually matters the then advices of eminent who in counsel; turn were entitled rely upon appellate stability to and did when phrases long words and since mature statutes and provisions brought scrutiny. constitutional were into multiplied, It was not to more then, invite more controversies into the courts for multifarious trials appeals according pres- to new whims and new wholly today Hence it sures. is not true that law- yers litigation; guilt appellate judges cause regard measurably greater. in that has become This action took reverse insti- turn after it was initially Appeals. tuted and decided in the Court complaint designed Plaintiff’s as filed was to obtain superintending prayer writ control. The there- temporary of was for restraint defendants Bcjback v. G-oveenor. 233 Black, Opinion by with, steps governor, from pursuant ordered and for an 201.7-201.10, to said sections requiring the con- mandate defendants to ultimate pending proceedings now “the criminal clude plaintiff taking steps against di- before further taking of commencement of the testi- rected mony proceedings.” complaint removal in the general’s attorney answer and the framed, thus in an submission resulted thereto, went due reports, denying published relief in the order, as prayed. 1 was entered Division That order plaintiff 29, 1966 18, 1966. November November rehearing. January petition 1967 18, a for filed “Supplement plaintiff for a to Petition Rehear- filed ques- ing,” raising constitutional for first time the 3, On March 1967 Division above. tion considered publish, pre- opinion after which, it did not filed liminary procedure taken after the recitals as fol- concluded entered, 18 was of November order lows : authorizing provisions 1948, 201.7, OLof prose- attorney general or direct the the cuting charges hearing’ attorney on the a to conduct alleged officer basis removal probate judge commis- or circuit court before imposition of executive func- is an unlawful sioner officers in contravention of

tions on provisions Michigan of Constitution § 2. art 3, authority opinion and rea- based on the “This Slattery (1945), following

soning 310 In re cases: Transport Mich Local Workers Judge (1948), America Circuit v. Genesee Union exposition ap- reasoning 322Mich and the opinion proved cases as set forth in the case of In the matter those Rich- Cardozo Justice (160 655). ardson, ship also, 247 NY NE Town- See, Township Dearborn Dearborn Clerk (1952), 334 Mich 673.” Black, J. by This was extent the of treatment accorded Divi- rehearing-raised question 1 to sion and the constitutional posture the such was the case when the attor- general cross-appealed. having ney The case been grant plaintiff admitted here on his leave, devoted original exclusively questions brief raised in original complaint. reply his Thereafter he filed a consisting only following: brief cross-appellants’ reply “In as assertion, set questions forth under counterstatement of involved compiled III, that section 201.7 of the laws 1948, gen- authorizing eral attorney direct attorney prosecuting hearing or to conduct a on charges alleged as for removal basis of a probate judge officerbefore a or circuit court commissioner does not contravene the doctrine of separation art expressed in Const 1963, plaintiff-appellant § cross-appellee 3, 2, and sub- mits that case of In Richardson, Re NY 247 401 (160 (Court 655), Appeals, 1928), NE York, New impel contrary and must should this Court reach a conclusion. plaintiff-appellant cross-appellee “Further, and upon language relies the succinct of the Court of

Appeals quoted pages which is verbatim at and defendants-appellees cross-appellants’ 23 and brief.” plaintiff exclusively

Since relies In on Richard- Re (160 655), son, NY 247 401 NE 1 since Division part, only pointed did likewise it need out that provision no constitutional such we have here, providing jurisdiction, powers that the and duties question provided of the class of should be by cited, was law, involved, discussed in that case.

To conclude: We no maim more or truncate legislative provided by section arti clip nonjudicial 6cle than from the same article the duty (Allor Wayne v. Co. Mich [1880], Auditors v. GoverNor. Buback Black, by Attorney [1905], General Loomis 76, 100, 101; Emery 560; In [1907], 383, re 149 Mich 547, npon jus presently 385) 292is section cast really designated judges. it So does tices and matter whether statutory question provisions in require probate judges perform non do not do or they ques legislation If thus do, duties. plainly 1850, 6, Const art was authorized tioned up 1908, now 7, 13, then art Const art 15. This and is held Const was separation since all 3 Constitutions have, true express exception. made the same section, I for reinstatement of to reverse remand vote below, order entered of November the first costs allowed. should be 1966. No Kelly JJ., and BreNNAN, J.,C. Dethmers, concurred Black, with

appeals, circuit conservators “Sec. Justices peace and other within their supreme court, judges respective jurisdictions.” provided by judges of the law shall court JUDGE. v. WAYNE CIRCUIT

BUBACK v. SAME. BOMMARITO Jury Tampering por Opportunity —Sheriffs. 1. Venue — of criminal changing venue discretion exercise of court’s Trial still was undersherifl: held, defendant trial, proper, where keeping the whose deputies into superior and still office committed, especially would case jurors in defendant’s by inade- difficult sequestration was made jury task of where 750.478). (CL quate facilities [1-3] 21 Am Jur References 2d, Criminal for Points Law in Headnotes et seq_.

Case Details

Case Name: Buback v. Governor

Court Name: Michigan Supreme Court

Date Published: Mar 4, 1968

Citation: 156 N.W.2d 549

Docket Number: Calendar 15, Docket 51,738

Court Abbreviation: Mich.