Civil Service Commission v. Department of Labor

CSC оf Labor v OF LABOR v DEPARTMENT CIVIL SERVICE COMMISSION MATULEWICZ GOVERNOR (cid:127) 21).— (Calendar 23, Argued January No. Docket No. 77816. 28, 1986. Rehearing 425 Mich 1201. denied Decided March Ingham brought in the Commission an action The Civil Service Labor, seeking against Department of a Circuit Court compensation act which 206 of the workers’ declaration that § hearing position 213 of the referee and act § abolishes the Magistrates that would be ex- establishes a Board of which empted civil service are violative of the from civil service 1963, 11, provisions 5. of Const art § referee, brought Matulewicz, a and others Dennis against Ingham Court the Gover- similar action in the Circuit others, seeking 206 and 213 are a declaration §§ nor and compel employ- mandamus to continued unconstitutional and Compen- hearing referees within the Workers’ ment of current The Governor filed an and classified civil service. sation Bureau Court, requesting Message Supreme with the Executive certify question Ingham Circuit Court be authorized Supreme granting request, the Court In lieu of the Court. Ingham Circuit Court to establish an accelerated directed the schedule, trial, judgment. proceed final and issue a circuit court. actions were consolidated Court, Bell, J., Ingham Robert Holmes declared Circuit permanently enjoined the defen- 213 unconstitutional and § taking steps provisions it or dants from further to effectuate Legislature as not severable 1985 PA 103 denominated Supreme granted the defen- from 213. The Court thereafter § Appeals. appeal prior dants leave to to decision the Court opinion by joined by Chief Justice Levin, In an Justice Cavanagh Supreme Boyle, and Justices Williams Court held: referee, abolishing position of Section for Points in Headnotes References 2d, seq. Compensation 540 et Am Jur Workmen’s §§ [1-3] Quick Index under Workers’ annotations in the ALR3d/4th See the Compensation. 424 Mich 571 213, establishing Magistrates, a Board of do not violate Const

§ art 5. Legislature may, provi- 1. The consistent with constitutional sions, powers discharged formerly transfer duties and civil employees service to a board or commission outside the civil establishment, 103, system. by §213, service PA Magistrates referees, replace the Board to the and power magistrates the substantial increase in the of the to high degree finality by eliminating, decide cases with a 103, under other sections of Act review of decisions of the magistrates merely de novo does not transfer the duties of the magistrates; rather, power magis- referees to the the importance actually trates and the of their decisions is in- creased. magistrates power presently 2. The are vested with the Compensation Appeal vested in the members of the Workers’ Board, thought performing whose members were to be a func- importance dignity tion of sufficient and to be removed from system. Removing magistrates the civil service from civil subjecting appointment service and their and retention to the political process, accountable, making politically thus them is. principles. consistent with constitutional Decisions of by referees were reviewable de novo members of the wcab, who always terms, reappointment in turn have for fixed with served pleasure changes at the of the Governor. The occasioned Act politicization compensation 103 effect no further of the workers’ system previously. than has existed Replacement magistrates 3. of the referees does not deprive status; promise the referees of civil service made to employment them of continued can be fulfilled without restrict- ing Legislature enlarging from the functions and duties of compensation hearing requiring workers’ officers and from process the officers be selected different from that em- ployed past, limited, in the that their tenure be and that their accountability political process to the be increased. provision authorizing 4. The constitutional the Civil Service classify positions empowering Commission to ap- all and pointing positions authorities to create or abolish for reasons of terms, efficiency, Legislature administrative does not bar the creating positions abolishing from changing new old and respective responsibilities. duties and Cavanagh joined by Chief Justice Williams, Justices and Boyle, concurring, stated that 213 of 1985 PA 103 § lies within a reasonable construction of Const art 5. The consti- § light tution must be construed in of the circumstances known Dep’t of Labor CSC the time of the enactment of the civil to the framers at service Legislation existing permitted at that time boards amendment. solely adjudicative functions and boards and commissions with primary through performed their functions individual which Thus, contemplation of it was well within the members. except to from classified civil service a board which framers performed solely adjudicative functions similar to the Board of Magistrates per- and a commission which could multimember through primary form individual commissioners. its functions Magistrates the Board of are consistent with attributes of requirements considerable of case law in that it is a board of appointment importance dignity serves on and which Governor, subject very performs adjudicative duties to limited review, quasi-executive responsibilities quasi-legislative has authority procedural rules and in that it has to create its own employees, authority hire and fire its own is autonomous has independent, collectively. may act Treatment of requirements Magistrates exempt civil service Board of from purpose comports underlying of the civil service with the protect great amendment bulk of civil servants from partisan hiring firing, permitting popular representa- while public accountability. Application tion and of these factors that the Board of 1985 PA 213 leads to the conclusion excepted Magistrates properly is from the civil service. Reversed. Brickley joined by Justices Riley, Archer, and Justice dissenting, Magistrates stated that the Board of created under purported compensation act which of the workers’ §213 except is not a board members from classified civil service excepted or commission from classified civil service under 1963, 11, 5; held to violative Const art 213 thus should be § § 11, 5, 206, position of art and which abolishes of § § referee, and all other sections 1985 PA 103 not severable inoperative. from 213 should be rendered § At the time the constitutional mem- amendment exempting

bers of boards or commissions from classified civil service was adopted, phrase "boards or commissions” was intended to body primary mеan a which carried out all or some of its entity through functions as a collective rather than individual understanding phrase members. The common of the did not 1963, 11, change adopted. when Const art 5 was With numeri- § excepts departments specificity, cal art from the covered § government department only of state head and no more positions, leaving than five additional within the classified civil branch, 57,000 employees includ- service some of the executive 424 Mich ing persons responsible supervision many are for the who expenditure employees thousands of millions of public expression closely guarded dollars of funds. The of such exceptions operating departments numerical within the of state government, leaving positions high importance within the service, classified civil leads to the conclusion that the drafters by exempting of the amendment not undo their work would they uniquely

boards and commissions unless were different government. from other functions of state independence autonomy unique While one is charac- distinguished exempt teristics which an board or commission at adopted, time civil service amendment was the charac- deliberation, teristic of collective so common in those boards represents and commissions and which the most common un- derstanding, literally phrase historically, "boards commissions,” cannot be dismissed. Because the Board of Magistrates required carry created under is not out §213 any primary entity, of its functions as a collective the board is purpose not a true board for the of the "boards” and "commis- exception sions” of art 5.§ Compensation — — 1. Workers’ Constitutional Law Civil Service Hearing Magistrates. — — Referees Board of compensation Amendment of the workers’ act to abolish civil position service referee and establish a Board of Magistrates place system in its outside the civil service to hear adjudicate compensation workers’ claims did not violate (Const 1963, provision the civil service of the constitution art 11, 5; 418.206, 418.213; 17.237[206], 1985 PA § MCL MSA 17.237[213]).

Concurring Opinion Williams, C.J. Compensation — — 2. Workers’ Constitutional Law Civil Service Magistrates. — Board of Magistrates 103, 213, The Board of established under 1985 PA properly excepted service; from the civil when construed in light surrounding of the circumstances the enactment of the constitution, civil service amendment of the it is seen to be the type contemplation of board within the of the framers of the excepted service; amendment to be ñrom civü its attributes are requirements respect consistent with of case law with to boards excepted service; from civil and treatment of the board as exempt comports underlying purpose with the of the amend- protect great partisan ment to bulk of civil servants from CSC of Labor popular representation ñring, permitting and hiring while and 103, (Const 11, 1963, §5; accountability 1985 PA public art 418.213; 17.237[213]). MSA MCL Dissenting Opinion Archer, J. — — Compensation Service Law Civil Constitutional

3. Workers’ Magistrates. Hearing — — Board of Referees Magistrates the workers’ under §213 created The Board of except purported compensation board members act which not a or commission civil service is from classiñed 1963, 11, art excepted under Const from classiñed civil sеrvice 11, 5, 206, 5; and § held to violative of art 213 should be § § referee, position purported and which abolish 103 not from §213 of 1985 PA severable all other sections (Const §5; inoperative art be rendered should 418.206, 418.213; 17.237[206],17.237[213]). MSA PA MCL Sorensen, T. Warner, Judd Paul & Norcross (by Barrett) Cassard, William J. Richard E. for Civil Service Commission. Michigan plaintiff Ell- Erwin B. Levin, Levin, & Dill (by Garvett Heldt) Jeffrey A. mann Matule- plaintiff for wicz. Kelley, General, Louis J. Frank J. Attorney George Weller, H.

Caruso, General, Solicitor General, the defendants. for Attorney Assistant Amici Curiae: Wright,

Dickinson, Moon, & Free- Van Dusen Young, Jr., P. and Robert W. man Robert (by Powell) of Commerce. for Greater Detroit Chamber Ralph Rossen, O.

Jordan Counsel, and General Jones, Counsel, Interna- Associate General Automobile, Union, Aerospace tional United America, Agricultural Implement Workers UAW. Ice, H.

Miller, Cohen, Mark Martens & P.C. (by 424 Mich 571 op Opinion the Court Pittman), Cousens and Glenda L. Michigan for Teachers, Federation of AFL-CIO. Benjamin,

Levine, Tushman, Bratt, Jerris & Bratt), Stein, P.C. Barrie R. (by Michigan for In- jured Workers Michigan Lawyers Trial Associ- Keils) ation, and (by Lucinda Michigan for Trial Lawyers Association.

Sachs, Nunn, Kates, Kadushin, O’Hare, Helves- ton Waldman, & P.C. Theodore Sachs (by Nickelhoff), Edgar McPhail, Andrew Sharon Jerome Dew for Wolverine Bar Association and National Conference of Black Michigan Lawyers, Chapter. Gulawsky

Lidia for Women Association Lawyers of Michigan. McCree, Jr., H.

Wade Compensa- Workers’ tion Michigan. Law Section of Bar the State J. questions presented concern the

Levin, constitutionality legislation, 1985 PA compensation hearing removes workers’ officers from the civil by organizing state service them in a board. provides

The constitution state civil service of "all system consists ... in the state service” other than excepted those or specifically exempted. "[Mjembers of boards and commissions” organizes are excepted.1 compen Act 103 workers’ positions "The classified state civil service shall consist of all election, except by popular the state service those filled heads of commissions, principal departments, of boards and members principal pal departments, legislature, employees persons heading princi officer of boards and commissions executive record, employees employees of courts of education, higher of the state institutions of all state, eight positions exempt in the armed forces of the governor, principal department, each office of the and within when CSC Labor op Opinion the Court Magist "Board officers in a sation rates.”2 judge

The circuit held that officers "proper” of a commis- are sion, Magistrates) members (establishing §213 the Board of and that of Act is an unconstitutional attempt limitation. to evade constitutional granted Appeals. bypass of the Court of This Court § 213 of 103 is hold that Act We reverse and constitutional.

I challenged provisions in enacted con- were provision junction Act 103 that elimi- with a of compensa- nates de novo review the workers’ (presently appellate the Workers’ tion tribunal Board), Compensation Appeal Act hereafter under Compensation 103 to be as Workers’ known Appellate Commission, of of workers’ decisions hearing (presently compensation the refer- officers ees), magistrates. A hereafter to be known magistrate’s to conclusive decision is be considered supported by appellate if com- commission petent, material, evidence on and substantial Legislature sought thereby to record.3 The whole compen- delay adjudicating in reduce workers’ large claims, had been attributed to a sation which backlog resulting appeal from the wcab seventy-five eighty-five percent referee to awards.4 31, 1986, filed are heard

Cases after March to be which shall requested by exempt each 4 ^[2] 3 MCL See n 33 See principal ns 25 and 26. three additional 418.213; ff. department.” department policy-making. MSA 17.237(213). positions Const head, The civil of a two other art policy-making service commission exempt positions, 5. nature within one may 424 Mich Magistrates. members of the Board of position year, referee is eliminated next as of March 1987.

A Act 103 reduces the number of officers thirty-nine thirty magistrates.6 from referees5 to appellate The number of members of the tribunal is reduced from fifteen members of the wcab appellate seven members of the commission.7 qualifications advisory A committee, with six appointed by Governor, members is created to develop a written examination to be administered applicants position magistrate, for the persons appointment by recommend the Gover- Magistrates appellate nor to the Board of biannually per- commission,8 and to evaluate magistrates. may formance of The committee rec- suspension ommend or removal.9 5Report Antoine, compensa of Professor Theodore J. St. Workers’ Cost, Michigan: fairness, 12,1984, tion p beneñts and December 67. 17.237(213). 418.213; MCL MSA 418.251; 17.237(251), 17.237(274). 418.274; MCL MSA MCL MSA 17.237(274). 418.274; MCL MSA 9 persons experience "The committee shall consist of who have in compensation.” 17.237(209). 418.209; the area of worker’s MCL MSA qualifications advisory "The develop committee shall a written examination. applicants The examination shall be administered to for position compensation magistrate of worker’s in order to deter- applicant’s ability knowledge regard mine the compensation with to worker’s following in the areas: "(a) Knowledge of this act. "(b) regard finding. Skills with to fact "(c) Michigan The rules of evidence. "(d) understanding A anatomy basic physiology.” of human 418.210(1); 17.237(210X1). MCL MSA "(1) qualifications advisory The perfor- committee shall evaluate the compensation magistrate mance of each worker’s every at least once years. upon The following evaluation shall be based at least the criteria: "(a) appeal The appellate rate of affirmance board and the CSC Labor of op Opinion the Court mag- appoint empowered is The Governor before, appel- of the and, the members as istrates commission).10 (the au- The appellate late tribunal of the Bureau Workers’ the director of of thority compensation workers’ appoint Compensation effect, is, eliminated. in hearing officers11 the Board members of of office of both The term is commission appellate and of Magistrates for tenure work- system Civil service four years.12 referees) (the officers compensation ers’ in continuing tenure eliminated. accordingly before) (as officers, as well office of compensation magistrаte’s opinions and of the worker’s commission orders. "(b) disposing including Productivity reasonable time deadlines of cases. "(c) hearings. conducting Manner "(d) by transcripts Knowledge demonstrated of rules of evidence as compensation magistrate. hearings conducted the worker’s "(e) Knowledge law. "(f) against particular any defen- demonstrable bias Evidence claimants, dants, attorneys. parties. surveys “(g) of all interested or comments Written exempt from under this subdivision shall "Information obtained act, 442 of the of information Act No. disclosure under the freedom Michigan being 15.231 to 15.246 of the sections Public Acts Compiled Laws. "(2) section, qualifi- Upon completing evaluation under this an including report advisory shall submit a written cations any supporting committee governor regarding to the that evalua- documentation regard may to 1 or more of tion which the include recommendations with following: “(a) Promotion. "(b) Suspension. "(c) Removal. "(d) training or education. Additional "(3) regard- governor respond writing shall to the committee report ing response committee.” MCL the action taken in to the 17.237(212). 418.212; MSA MCL MCL MCL MCL 418.251; 418.213; 418.211; 418.213; MSA MSA MSA MSA 17.237(251). 17.237(211). 17.237(213), 17.237(213), MCL MCL 418.274; 418.274; MSA MSA 17.237(274). 17.237(274), 424 Mich 571 subjected appellate tribunal, to is

members of political process. Additionally, the is Governor reappointing of the from as a member barred person for who has served board or commission may a mem The Governor remove twelve years.13 good including productivity cause, ber for lack of neglect or other of duties.14 chairperson chairperson

A of the and a appointed by the commission are to be the Gover among in the nor from the members who serve chairperson pleasure of the office of at the Gover chairperson may productivity nor. The establish employ to standards that are to be adhered ees and members of the board or commission and general charge supervisory has control of and is in assignment employees and the and schedul ing of the work of the board or commission.15 assign power cases of the director bureau hearing officers16 thereby to the eliminated. authorized board and commission are both employ legal purpose legal assistants for the assisting research and members and the board and commission. The otherwise individual board and commission are also both authorized to promulgate hearing pro- rules and administrative cedures.17

B Magistrates required will be to file concise writ- opinions stating decisions, ten for includ- reasons 13Id. "may A member of the board or commission removed be

governor good explained writing cause which shall the” include, to, member. "Good cause for lack of shall but not be limited removal productivity neglect 418.213; or other MCL MSA duties.” 17.237(274). 17.237(213), 418.274; MCL MSA 15Id. 17.237(205). 418.205; MCL MSA 17.237(274). 418.213; 17.237(213), 418.274; MCL MSA MSA MCL CSC of Labor Opinion of the Court findings of law.18 ing conclusions and of fact only expected decision their to state referees were filling by ordinarily conclusory did so terms printed-form one-page spaces aon in the blank order. is final decision officer’s before, the

As percent seventy appealed19 of the com- unless pensation injured paid must be awarded during pendency dependents or his worker appellate appeal commission.20 to the an reviewable, as decision officer’s appellate panel by of an before, a three-member panel’s appellate A tribunal, commission.21 by on the entire commission is reviewable decision request chairperson chairperson con- if the precedent may establish the decision cludes compensation regard state, in this to workers’ with upon request more members of two or panel of the workers’ Decisions of a commission.22 compensation appeal are the "final decision board board.”23 appeal compensation reviews The workers’ generally novo, on the record referee decisions de made before although referee, it is authorized findings additional evidence.24 The receive magistrate fact of a are to be considered conclusive supported by competent, if the commission material, and substantial evidence on the whole considering record, evidence, defined as such accept record, whole as a reasonable mind will adequate justify appellate the conclusions. The

20 ^[22] Id. 19 18 MCL MCL MCL MCL MCL MCL 418.851; MSA 418.862; 418.847; 418.261; 418.274; 418.859; MSA MSA MSA MSA MSA 17.237(847). 17.237(851). 17.237(261). 17.237(859). 17.237(274). 17.237(862), added 1975 PA 34. 424 Mich receipt may commission authorize the of addi evidence, tional but it is limited to a review of only specific findings those of fact and conclusions requested parties that the have be reviewed. law qualitative quanti The review is to be both analysis full, tative of the evidence to assure a thorough, and fair review.25 application, right, judicial before,

As on not as of Appeals in the review is obtainable Court of Findings appellate this Court.26 of fact made acting powers, commission, within its the ab- fraud, sence of shall be conclusive.27

C 31, 1986, Cases filed March after and those by filed, 31, 1987, theretofore not heard March are magistrates. by to be heard The referees will 31, continue to filed on or hear cases before March position 1986. The of referee is abolished 1987,28 Compensa- 31, of as March The Workers’ Appeal July 1, 1989, tion Board is eliminated as of or earlier if there are to no more cases be decided by appeal may appoint board.29The Governor appeal expe- additional members to the board to which, in dite decision cases before the in six-year backlog.30 1984, had a five- to

D legislation Included are a number of 25 17.237(861a). 418.861a; MCL MSA 26 418.861a(14); 17.237(861a)(14). 418.861; MCL MSA Former MCL 17.237(861). MSA 27 provides "[findings The constitution that of fact in workmen’s compensation proceedings shall be conclusive in the of absence fraud 6, provided by unless otherwise law.” Const art 28.§ provides "findings The statute that the of fact made the commis- acting powers, fraud, sion conclusive.” MCL within its in the absence of shall be 17.237(861a)(14). 418.861a(14); MSA 17.237(206). 418.206; MCL MSA 17.237(266). 418.266; MCL MSA 17.237(251). 418.251; MCL MSA CSC of Labor procedural significant re- and other substantive anticipated Legislature the estab- forms. The Magistrates, and the Board of lishment of the consequent position of elimination tenure, would be their civil service referee and challenged. provided if the creation of It is Magistrates to be invalid is found the Board of this shall Court, the other amendments some of severable, others while also be invalid and are shall nevertheless be valid and are severable.31 1985 PA 4.§ pertain provisions to: The non-severable prepon- prove requirement entitlement a that the claimant —a review, in the of a claim for of the evidence and that absеnce derance the order of a 851) (§ magistrate is the order of bureau (§862[2]) appeal pending an —medical benefits 858) (§ attorneys of fees —the limitation 222) (§ procedures application —hearing and mediation and (§§119, 151[l][b], —employee the act and 161[l][d] exclusions from [4]) weekly penalty compensation for —payment installments of 801) (§ nonpayment payment lump —redemption personal injury liability by sum (§ agreement 835[1]) pursuant approved engages sub-employee liability employer if contractor —the 161(l)(d) employees persons the under would not be considered who encouraging person wilfully liability principal (§ [4]) employee pose as a contractor status to 171[3] qualified profit payments with contributions —coordination of 401(a) (§ 354[l][f]) sharing plan of IRC under § remarriage compensation payments of of wife or —the effect on 335) (§ maturity of child disability vocationally —payment to a of benefits for death 935) (§§ handicapped person 925 and care, service, employer’s duty to furnish medical dental etc. —an (§ 315[1]) by hearing liability fund referee —the of a carrier or determined 852) (§ magistrate, and reimbursement misdemeanor, act, comply employer’s failure to with the —an 641) damages (§ employee’s penalty and entitlement to request employee by physician at the of —the examination of an employee employer, report attorney, an refusal of (§ to submit to the exam, 385) physician testimony appeal repeal review board —the of extension of time to claim (§ 851a[2]) provision payment nursing care not be made for —the shall hearing (§ 381[3]) prior appeal periods year than one more Mich op Opinion the Court

II Act reorganizing adjudicative function cases, in compensation workers’ was based on the recommendations in report on workers’ com- pensation in Michigan, December, submitted Antoine, by Professor Theodore St. the Gov- special ernor’s compensa- counselor on workers’ tion.32

A The author report saw no reason for major changes structural at the referee level. The backlog and, at declining, referee level was referees, with the recent addition of ten additional the bureau’s aim deciding percent of all ninety contests within appeared nine months feasible and satisfactory.33 appeal was, situation at board level

however, seen as different. very During past decade, between seventy-five per- and eighty-five cent of all referee appealed. awards were backlog board’s 2,000 had increased from cases to 7,000 almost in eight years, the equivalent of five to six years’ output appeal board.34 review,

De novo report described as an 206) position (§ —the abolition of the referee appeal (§§ 251[3], 255[3], 261[5], —the elimination of the 266) 265[4], and appellate —the procedure creation of the commission and for a 859a) (§§ claim for review 274 and provision beginning 1, 1986, magistrate’s —the finding October supported by competent, material, of fact shall be conclusive if (§ 861a[3]) substantial evidence on the whole record repeal procedure by appeal board, —the for review and the requirement opinions (§ 859[2]) written and conclusions of law right appeal appellate —a to the commission where the matter pending appeal has (§860) years been before the board for three or more 32Report Antoine, supra, pp of Professor Theodore J. St. n 5 68-71. 33Id., p 68. 34Id. CSC of Labor Opinion of the Court litigants disappointed

"open their invitation to retry lawyers to to the case from seek scratch,”35 principal Having in mind seen as the cause. was that large precedent, body that there a is now questions years were affirmed on over the referees percent sixty-six of the time and on of law about issues of fact about eighty-two percent time, the appellate backlog level, novo at the de and review, longer said, is no "a Professor St. Antoine procedure luxury afforded, a that is that be can A referee should be needed” and eliminated.36 maker,” "true-decision and the should become a decision dispositive at "a more that level much step in the administrative process.”37 Drawing report by the former on an earlier Judge Appeals, T. of the Court of Chief John that St. Antoine recommended Professor Lesinski, required support their referees to decisions the with be findings Their of fact and law. conclusions findings supported if should be conclusive fact competent, material, and substantial evidence on the whole record.38 appeal said, board, Professor St. Antoine creating "streamlined,” five- or should be new possibly board, which be seven-member should anticipated able appeals, given reading handle the reduced number substantially record- reduced fact-finding responsibilities, legal use of assistants.39

35Id, p 69.

[36] Id.

37 Id., pp 68. 38Id., pp 71-72. report appealing party also recommended should required appeal inquiry por- specify narrow board’s transcript tions of the on. relied Where the decision of the affirmed, appellate ought officer is to act tribunal be able opinion adopt preparing without it finds it can formal when Id., findings. p officer’s 72. 39Id., p 75. Mich 571 Although provides the constitution that the civil by competi service commission shall "determine performance exclusively tive examination and on efficiency qualifi merit, the basis of and fitness the positions cations of all candidates for in the classi permitted fied the commission had de service,”40 partment heads and the boards and commissions appoint any to hearing member of the state bar as a hearing

officer, examiner, or referee.41 compensation acquired Workers’ referees had civil appointment service status as a result of in that Although manner. Professor St. Antoine could find providing significant support no hard data biased, accusations that referees were he "con perception political cede[d] that a of bias or of appointment favoritism in their damaging can be almost as acceptability to the of their awards.”42 urged Legislature He or the Civil Service bipartisan Commission "to [administra establish a judge][43] Advisory tive law Qualifications Commit prospective tee to interview and evaluate candi ratings confidentially dates, with to be transmitted appointing to the authority.”44

B report One month after Professor St. Antoine’s Legisla- issued, was a bill was introduced in incorporating principal ture his recommendations. appellate The tribunal would be reduced from seven, fifteen members to and would be renamed appellate compensation Workers’ commission.45 11, 5, Const art 4. § ¶ Attorney George Statement of during Assistant General Weller argument oral in this Court. 42 Antoine, supra, p St. n 5 75. report The informally noted that the referees are and almost universally Id., judges. p known as administrative law 67. 44Id., p 75. SB 274. CSC of Labor op Opinion the Court hearing judges be known as officers would opinions required file written and be would findings. stating be elimi- De novo review would findings nated, of fact and conclusions of hearing judge if be conclusive law46 would supported by competent, material, substantial Hearing judges record.47 evidence on whole appointed by of the commission would members the newly of a on the recommendation Governor compensation seven-member workers’ created , council.48 changes virtually in the duties made no bill except hearing officers, and functions of opinion requirement shall be filed. that a written organize hearing officers in a bill did board. full revision would have created

The first Senate desig- compensation commission workers’ appellate as the and members nated both compensation This was workers’ commissioners.49 accompanying analysis according to done hiring firing constraints of civil remove hearing accountability and to service officers House ensure ‍‌​‌‌​‌​‌​​‌​​​‌‌‌‌​‌​​​‌​‌‌‌​​​​​​‌​​‌‌​​​​‌​‌‌‌‍system.”50 The within the "administrative separated 103, substitute, Act which became compensation single commission into workers’ compensation appellate compensation a workers’ a workers’ commission Magistrates.51

Board of 46 7, SB 852. 47 274(7). 7, SB § 48 273(c). 7, SB § appointed majority by each of the One member would be Legislature, minority house and three members of each of the Governor. 49 (S-4), for SB 7 275. §§ Substitute panel Appeals appeal could not were to heard an which be who had heard the evidence. include the commissioner 50 Section, reported Analysis Analysis SB 7 out of Senate (S-4), 22,1985). p (May 5 committee 51 (H-4), 7 274. House Substitute for SB §§

588 424 Mich 571

III The Civil Service Commission and the referees Legislature, removing contend that in the the compensation hearing workers’ from officers findings service, classified defied the and recom Antoine, mendations of Professor St. reason for who saw no major changes hearing structural at the officer level.52The reforms he recommended were amendatory all legislation in embodied the first draft which left the officers classified service.53 argued

It is that none of the referees’ functions assigned or duties are to the board. The sole purpose was to remove the referees from civil system. magistrates service The are no more a legislation board than were the referees. does decisionmaking not take the initial function from give the classified referees and it to the board. It keeps function with the individual individually collectively.54 officers who act and not The Civil Service Commission and the referees observe the terms "board” "commission” accompanying See n 33 and text. accompanying See ns 45-48 and text. additionally The Civil Service Commission and the referees con legislative tеnd that functions faith bad is inferable from the transfer of performed heretofore within the classified civil service to magistrates politically appointed outside classified service: rule, general positions purported "As a where axe eliminated off, positions and incumbents laid and thereafter identical or similar positions are re-established and the filled others not entitled under employments, the civil service law and rules to such the courts will re-employment not Kaplan, employees.” hesitate order of the laid off Service, p 215. Civil argued principle It recognized Michigan. that this has been Comm, City 701; cite referees Smith v Flint 258 Mich (1932); Detroit, 176, 177; NW 814 Owen v 259 Mich 242 NW (1932). argue They through argument further that look courts "position” being that ployee it is a that is abolished than the rather em- being discharged, job who for abolition of the entails dis- placement it, qualified require- those been of who have for learned its ments, gained specialized experience it, performing in and would be working to alter their forced lives and careers. Dep’t of Labor CSC v 589 synonymous,55 to be and to mean a have been said persons” charged specific "body with a function of superintendence of some or with transaction particular business.56 perform

It is observed that the referees further significantly not different from functions that are those judges.57 The of law federal administrative nothing suggests argue in the referees that "all that act 'magistrates’ thirty are to hear en cases preside or en over each banc masse 'economy’ or 'administrative effi- the interests of personal ciency.’ function remains The decisive solitary responsibility. essentially It is a a ” any of or 'commission.’ function 'board’ many speaks of to be The act in sections action compensation mag- taken "a” or "the” workers’ provisions specific indicate, it is istrate.58 These judge No may English Dictionary system. 5 USC 3105. In conjointly may ’board,’ are civil states. These statistics were deliberative "Among the Executive Committee Commission the Judicial Administration Division of the American Bar tion. ^[56] 55 It They Maynard, 810, Federal administrative law corporation.” electors appears not be exercised also in its referees cite State service referees Minnesota, body, Minn cite on necessary this Court said that workers’ can derivation as Standards exercise the People Maynard, employees composed Justice 237, 243-245; cite 1 Oxford lawfully 681 who is incidents (Compact Cooley, ex rel Johnson v conducting survey vote, "single compensation provided by Judicial legislative well twelve states and more 109 judges National Conference ed English concurring, added NW2d 1971). than one persons.” county Administration. Both are powers in its Mich are townships and administrative the chief administrative 596 Dictionary 239; administrative law included in ordinary are subdivisions in which of a board of Independent person.” (1961). The Court also under are not in seventeen whose use, a civil aljs School supervisors supervisors indicates a auspices "the term powers 2 Oxford Associa- service part of (1867). judges said: Dist law 17.237(206X3), 418.356; 418.206(3); MSA MSA MSA MCL MCL 17.237(375), 17.237(841), 418.835; 17.237(356), 418.375; MSA MCL MCL MCL MCL 17.237(835), 17.237(847), 17.237(861a), 418.841; 418.847; MSA MSA 17.237(851), 418.861a; 418.851; MCL MSA MSA MCL 17.237(863). 418.863; MSA MCL 590 424 Mich op Opinion the Court argued, magistrates the work of the is not a collegial enterprise. or collective The board, not before commission, a or other collective body, single magistrate. but before a

IV judge agreed The circuit with the characteriza tion advanced the Civil Service Commission and judgment declaring the referees. He entered a establishing' Magis 213 of Act the Board of opinion trates, is unconstitutional. The filed judge stated that on consideration of this Court’s Liquor in decision Case v Comm, Control 314 Mich (1946), 632; 23 NW2d 109 he had concluded that magistrates body impor the board of tance and was "not a dignity.[59] merely tool, It is a an artifice purpose legitimize whose sole is to the removal of positions from the classified service.” judge magistrates observed that would "operate exclusively almost as individuals. Essen- tially, they judges are administrative law who individually hearings.” conduct "[T]heir duties substantially functions are predecessors, similar to those of their referees who are classi- employees.” magistrates fied have no duties they required and functions which "are to dis- charge body,” although they as a collective "are body” employ- authorized to act a collective in ing support promulgating staff and rules on hearing procedures. comparison administrative "In many important discharged functions magistrates individually, respon- these two type commonly sibilities, which are of entrusted single may corporately officials, and which following quotation See text opinion n 91 for from this Court’s Liquor Comm, 632; Case v (1946), Control 314 Mich NW2d phrase "importance where dignity” appears. CSC of Labor insignificant. magistrates, by the are undertaken they opinion Court, fall far short of In the of this conferring importance dignity and are insuffi- (Emphasis proper board.” cient to constitute a original.) V ineluctably from the truisms It follow does perform, magistrates expected individu- that are princi- collegially collectively, ally pal their and not or deciding hearing cases, that and function ordinarily have two boards commissions their decisions collec- members and make more tively, organized magistrates in were and that the compensation a to remove workers’ system, the civil service officers from creating unconstitutionally Legislature acted perform a function officers to board of persons by performed by formerly civil covered service. generally sure, are boards or commissions

To be persons, composed thus the of two or more understanding people in- would of most common deed be that a board two or more truism that composed

or commission is replicates persons. only But that ordinarily are or commissions boards persons. composed It does not of two or more be com- or commission cannot follow that a board posed person of a board or that all members of one collectively every mat- must act or commission ter or in some matters.

A was In civil service amendment 1940, when the constitution, commis- there two to the were added Corporation Racing sions, Commission and essentially Commission, that were Securities one-person commissions. 424 Mich

The Racing Commission composed was of one person, the Racing Commissioner, ap- who was pointed pleasure served at Governor.60 Corporation

The and Securities Commission was essentially one-person commission.61 The one commissioner of that appointed commission was for a fixed term Governor.62 Commissioner, Racing Racing for the Com- mission, Corporation and the and Securities Com- missioner, for the Corporation and Securities Com- mission, decisionmaking acted alone. There was no through persons acting either commission colle- gially body members a collective or entity. commission, Just as there can one-person be a there can be a one-person board. Business Corporations provides Act that a board of directors "shall consist of or more members.”63 commission, meeting The civil service at a on 6, 1941, adopted declaring March an "order” pursuant 60 Thecommission was created 1933 PA 1948 CL seq.; seq. Racing 431.1 et MSA 18.941 et There was one Commissioner spoke and no other member of the commission. The act "commissioner” and a "commission” and 'commissioner’ and 'commission’ as used in this act shall be construed in terms of a provided that term "[t]he 431.1; Michigan Racing the mean Commissioner.” 1948 CL MSA MSA 27, replaced 431.31; 18.941. The 1933 act was 1959 PA MCL 18.966(1). 61 13, pursuant The commission was created to 1935 PA 1948 CL seq.; seq., 451.1; 451.1 et MSA 19.781 et MCL MSA 19.781. 62 Corporation empowered The and Securities Commissioner was appoint rized "to commissioner for his evidence as sions and deputy not more than three commissioners who were autho hearings to the conduct in the several matters submitted determination, report and to make of such them, may together be submitted to with their conclu recommendations, to the commissioner for his action . . . .” 451.2; deputy provided MCL MSA 19.782. It the was further that power perform authority commissioner such other duties as "shall likewise have delegated may to them the commissioner.” as, They carried out their function as individuals and not of, entity. or members a collective 21.200(505). 450.1505; provi MCL MSA This is not an unusual O’Neal, 3.13, Corporations, See Close n 1. sion. Labor CSC of Opinion of the Couet "exempt” from commissions the boards and among Corpora- are the one-member the state civil service and the one-mem- tion and Securities Commission Racing Commission.64 ber

B no Board Compensation Appeal The Workers’ a collec- acting as longer out its function carries tive or body entity. of function the only, indeed the primary, appeal employment security

wcab —like the to hear adjudicative, of review65—is board/board and the of referees appeals from orders and decide for workers’ com out claims arising director66 discharging the In filed bureau. pensation with function, sits in fifteen-member the wcab decision reached three. Since panels of assigned to a the three members by majority of the wcab.67 appeal the final decision of hear an is dissenting opinion Racing that the Commission and indicates may excepted Corporation have been and Securities Commission departments and not as members from civil service as heads of 652-653, Post, may pp they n That have been commissions. 25. preclude having excepted departments also their heads of does not excepted as of commissions. been members may provides a board or commission The 1963 Constitution 1). (see department government principal n That does a head state exception negate of boards or not from civil service members principal departments. It indicates that commissions that head rather excepted because of of such board or commission are members membership not as the head their the board commission and excepted, principal department who are members —it (The or commission. Civil Service Commission the Civil board Rights principal departments.) Commission head accompanying See 84 and text. ns 17.237(255). 418.255; 66 MCL MSA 17.237(261). 418.261; 67 1980PA MCL MSA from three The number of members of the wcab was increased 266) (1965 (1955 62) (1964 139; PA 1969 PA PA to five PA to seven 317). amendment, panels of four. If the 1965 members sat in After result, final; if was in the it was there four members concurred disagreement, required full to be the matter was reviewed board. eleven who sat In the number of members was increased to Mich Opinion op the Court Thus, two of the fifteen members of the wcab appeal, decide the and their decision then becomes the decision of the wcab without consultation or participation voting by, with, deliberation or or the other twelve members of the wcab. There is decisionmaking by acting no the entire board entity. an provides pending

Act 103 that matters now be- panel by fore the wcab shall be heard of two members of the wcab and that their decision shall Only they be the final decision of the wcab. if cannot reach a decision is a third member designated, in which event the decision of the controlling third member shall be and shall be considered to be the final decision of the wcab. Act require 103 does not in terms that the third mem- participate ber in a "collective” decision.68 If unconstitutional, Act were held to be panels,69 wcab would continue to act now of two, three, or on occasion and the decision of majority panel of a three-member —two —would continue to constitute the decision of the fifteen- per- member wcab. The wcab would continue to only body function, form its not as a collective entity, panels but in of two or three._ panels only five. Further review the entire board was obtainable majority agree; in the unusual case where a otherwise the decision of a of the five could not majority was the final decision of the (1973 73). PA In the number of members was increased to fifteen who sat in panels majority agree, of three. If a of the three were unable to required fifteen-person matter was to be reviewed the entire board. provision In for review the entire board was elimi- provides review; accompanying nated. Act 103 text. for such see n 23 and 17.237(261). 418.261; 68 MCL MSA 17.237(261) (see 68) (1985 418.261; 69 MCL MSA n is not tie barred 4) regard PA and thus survives without to whether § this Court decides of Act 103 is unconstitutional. 595 CSC of Labor Opinion of the Court

c 1955,70 the work the wcab was created Before by by was done thereafter and now done the four-member Workmen’s the wcab

Compensation Com- mission,71 Board,72 Industrial Accident grand- the successor of the deputies who were

with the aid office, at the time referees when that fathered as the created, established.73 was was wcab provided original 1912 enactment compensation heard would be claim for workers’ consisting by of an a "committee of arbitration” representative employer’s employee’s and one Board; unless a of the Industrial Accident member claim for filеd, deci- review was the committee’s Industrial as the decision of the sion would stand Accident Board.74

By 1919, to state that the act had been amended employees, one of its called the board could name deputy member, member of the decision of the to sit as a third a committee committee,

of arbitration.75 The whom would then be members none of board, the decision of the would stand as timely filed.76 unless a claim for review was 1921, In of arbitration was elimi- the committee except parties If could not nated name. agree, hearing by one was to be conducted 70 17.6(15). 62, 408.9; 1955 PA MCL MSA 17.6(7). 357, 408.1; 1947 PA MCL MSA (1st Sess) 72 1912 10. Ex PA 17.6(13). 408.7; 73 1955PA MCL MSA (1st Sess) PA 10.1915 5461. 74 1912 Ex CL 64,1929 75 1919PA CL 8459. compensation The workers’ act had been theretofore amended appoint deputy permit office two commissioners who held the board "during pleasure” authorized under the direction of its who were in the same manner board to conduct a with like effect as if done or arbitration 171; 1915 PA a member of the board. 64; provision PA 1929 CL 1915 CL 5472. This was amended permit appoint deputy mem- the commission to "sufficient "efficiently bers” to enable it to administer law.” 64,1929 PA CL 8447. 76 1919 Mich deputy

person, member. member or either designated deputy so member or "The member arbitration a committee known as shall be phrase of arbitration’ 'committee wherever or of the member decision act.” The used in the deputy before, as the would, stand member by the board77 review unless of the board decision sought. timely was or commission78 Accordingly, 1955—for over 1912 until from compensa- forty years workers’ review of a —unless sought, timely was decision officer’s tion employee single member of a the decision decision as the stand would or commission board without, conse- commission full or of the quently, decisionmaking by any or com- the board entity. body or as a collective mission D orga- Liquor has been Commission Control The hearing with a unified commission nized as a collectively, and an division, appellate not act which does nearly thirty does, for division, which hearing years, commis- There are two 1957. since commissioners.79 and three administrative sioners 8446, 8445, 60, 8447. 1929 CL 77 1921PA and the Accident Board to the Industrial In the references (see However, n until 1955 eliminated. of arbitration were committee 75), member) (a deputy stand as employee would an the decision of timely was unless review of the board or commission the decision 17.181, 17.180, 413.6, 413.7, 413.8; 245,1948 MSA sought. 1943 PA CL 17.182. 17.6(7), 408.1; MSA 1947 PA 1948 CL 78 See 1921 PA 43 and transferring powers Board to commis the Industrial Accident sions. 133, creating Liquor Board of Commission Control 79 1945 PA Examiners, 1957 act Hearing repealed PA 264. The was enlarging concept act in the 1945 forward the embodied carried the number of five liquor three to five. All commissioners from control appointed by Governor with of the commission are members designated by "Two . . . shall be of the Senate. advice and consent the chairman as to hearing cases and to hear violation commissioners” three, shall "act as perform The other functions and duties. other CSC of Labor hearing replaced commissioners members Hearing of the Board of Examiners established excepted under the 1945 act held to be from civil Case, service in in discussed Part VI.80An adminis- appeal may trative be allowed in the discretion of the three administrative commissioners who for purpose appeal this are constitutеd an board.81 hearing hearing commissioners, as did the individually collectively examiners, hear and not appeal hearing an board to the decisions rendered commission- 436.5; ers.” MCL MSA 18.975. originally As enacted the statute did not describe the the hearing "hearing officer commissioners as commissioners” other three commissioners as "administrative commissioners.” The simply 1957 act stated that the "commission shall consist of 5 mem- bers,” and that two of these members "shall hear cases and render decisions,” remaining and the three commissioners "shall act as an appeal board.” present 31, providing The statute took its form 1976 PA that two designated by commissioners shall be missioners, the chairman as com- remaining designated hearing and the three shall be as adminis- trative commissioners. The three who are not commissioners responsibility administering provisions "have the for of this act relating enforcement, licensing, purchasing, merchandising, provided: responsibilities distribution.” It is further member commission shall be the administration of the this act which have not been "The 5- provisions delegated specifically to either the hearing commissioners or the administrative commissioners in this might argued provision section.” It that this latter indicates Liquor responsible the some of its however, performing Control Commission is at least primary body. appear, functions as a collective It does not function, any, what if of the commission would not be "licensing, enforcement, purchasing, included within either merchan- dising, appeals and distribution” or "violation cases” and any therefrom. Absent formed as a per- evidence that is there some function so body, concluding collective there is no basis for that a primary required performed function of the commission is to be or performed by has been the five body. members as a collective events, hearing In all performed function was and is individu- ally by hearing Board of replaced commissioners who the members of the Hearing individually. Examiners who also acted 80 power See n 79 liquor hearing and Part VI. of a control expanded by act; officer was the 1957 members the Board of Hearing empowered Examiners only were under the 1945 act "report findings their hearing to the commission for decision”—the empowered by commissioners only were the 1957 act not to "hear 436.5; cases” but also to "render decision.” MCL MSA 18.975. 81See n 79. Mich seeking suspension

complaints or revoca- license 1945, the Board of either a member of tion. Since 1957) (since Hearing member of a Examiners 1976) (since hearing aas the commission described hearing individually in commissioner has acted complaints against no There has been licensees. decisionmaking by the or the commis- either hearing only entity at the level. sion as an appeal an occurs if and when collective action appeal appeal If is al- board. an allowed majority two, of the ad- lowed, a the decision of commissioners, stands as the decision ministrative of this five-member commission. hearing compensation function

If the workers’ Liquor reorganized, of the in the manner had been commission, Commission, with as a unified Control appellate hearing division,82 an division and much collective decision- would then be as therе making hearing entire unified level at the 1912 and 1955 there was between commission as compensation where, cases after deci- in workers’ deputy who con- member or member sion hearing, re- no further administrative ducted sought. And there would then be as view was decisionmaking appellate at much collective 103, deficiency namely in Act there would The asserted decisionmaking by the "entire board or commission or be collective (see 86), could, appear through panels” accompanying text n it would compensation practice in workers’ —consistent with the (see 70-78) period, accompanying forty-year claims which included service members of "boards text ns over 1940, concerning the civil when the amendment exception system with an was added to the constitution (Const commissions,” 6, 22; art now 5) by simply art been avoided or rectified Const § —have commission, single creating unified as was done in the first full (see n 47 and Senate revision of the bill accompanying that became Act divisions, text), say thirty-seven members with two (seven members) (thirty appellate and a division an members). division primary Then functions of the unified commis some discharged through panels appellate collectively sion would be commission. of Labor CSC v by as has unified commission the entire level began in to sit when the wcab since 1973, obtained began panels to sit five, when it 1980, panels of three. only it not a constitutional Surely difference — sepa- form, two not substance —that difference and the bodies, Magistrates the Board of

rate than a commission, rather were created appellate commission, Liquor Control as the unified single Commission, of two divisions —a composed division.83 appellate and an

E Commission Service the Civil Also stated 6, meeting was the its March exempt at and the Commission Compensation Unemployment Board cre- Appeal Compensation Unemployment in 1937.84 that was amended a 1936 act ated Unemployment for an provided 1936 act mem- of four composed Commission Compensation separate and a the Governor appointed by bers to be persons of three composed appeal board power In the commission. appointed by board was appeal the members appoint adjudicative In in the Governor. vested ato board was transferred appeal function of the tribunal, the Employment named appellate new general jurisdiction and the intermediate The trial court organized There is appellate as a unified court. in New York is court justices, composed of whom are 350 elected most court of over one appointment by gubernatorial on justices, serve trial some of whom discretionary appeal to the appellate court with a four divisions of the Law, seq. highest 70 et Appeals, NY Jud York’s court. Court of (McKinney). New Sess) 17.503, 17.537, (Ex 421.3, 421.35; MSA 84 1936 PA 1948 CL 347,1948 421.35; MSA 17.537. PA CL times, there subsequently number of but amended a The act was change a board was created until 1977 when there no substantive was members, appointed composed also to be of five review of Governor, 421.35; 52; MSA replace appeal MCL 1977 PA board. 17.537. 424 Mich 571 op Opinion the Court Security composed Review, Commission Board of persons appоinted by of five the Governor.85 appears only employ- It that the function of the security appeal ment board/board review was adjudicative. Thus, and is before the 1940 civil service constitution, amendment was to the added Legislature a board had been created that only adjudicative had no administrative and func- recognized by tions, and that had been board exempt Civil Service Commission as in 1941. F dissenting opinion require pre- would as a exception condition to statute from civil service that a creating require a board or commission that the members of the board or commission "perform primary decisionmaking some of their collectively functions either an entire board or through panels commission or of the bodies.”86It appears agree thus that we all that a board or entity commission need not act as a collective every any disagreement indeed or matter. Our is thus limited to whether some collective decision- making required by panel say is two or three thirty-member members commission. a fifteen- or board or it Once is decided that a board or commission entity through need not act as an the vote of a quorum of the whole commission, board or there is precedent logic seeking no reason in for by insisting retain the form of collective action that a board or commission act at least in

panels of two or more. The notion that collective decision- making required concept is flows from that a body. board or commission There is no basis for act aas collective must drawing the line at two 85Id.

86Post, p 654. Dep’t op CSC v Labor members rather than one once it is recognized exception, Const art members of boards or commissions does not re- quire collective action the entire entity acting as an entity. Establishing a collective decisionmak- ing criterion announcing it is satisfied when two members of a fifteen-member agree would be incongruous.

G sum, In the Board Magistrates composed is more than one it person; composed of thirty magistrates.

A number of gubernatorially appointed boards (i) Industrial Accident commissions — Board, subsequently Compen- named the Workers’ Commission, sation Compensa- now Workers’ (ii) Appeal Board; tion Hearing the Board of Exam- iners, and Liquor the Control Com- subsequently (iii) (iv) mission; Racing Commission; the the Corporation Securities Commission —and boards, corporate countless have acted either on the decision person of one or on the decision less than a majority quorum of a of the whole board or commission.

Three commissions, boards or the Industrial Board, Accident the subsequently Workers’ Com- Commission, pensation Commission, Racing the Commission, and the Corporation and Securities acted —before the 1940 amendment to the constitu- adding tion the provision civil service the —on decision of one person. boards, The sole function of two the Unemploy-. Compensation ment Commission Board Appeal (created 1940), before now the Employment Secu- Review, rity Commission Board of and the Work- Board, Compensation Appeal ers’ adjudicating was claims of seeking compensation. workers 424 Mich out its function longer

The wcab no carries body a collective particular claims as adjudicating in panels to act or and would continue entity, 213 Act 103 were to regard to whether without be declared unconstitutional.

VI Comm, supra, Liquor Control this Case In challenge to the constitutional- Court considered a PA 133 created a Board of ity of 1945 which Liquor for Control Com- Hearing Examiners of the board mission. There were three members for terms appointed six-year who were Governor, of the with the advice and consent the Governor Senate. Members were removable misfeasance, malfeasance, for and nonfeasance. Control Commission required Liquor The act the board whenever complaint to file a with revoked, suspended license was to be either hearing limited to required the board to conduct a regulations the facts and and rules and of the law board, findings commission. The to be based and the law on facts adduced at commission, regulations and the rules and required reported were commission It provided: decision. was "Such board of or any member thereof shall conduct examiners hearings questions on referred to the commission, regulations under such rules and may (Emphasis supp commission establish.” lied.)87 87 Same; hearing hereby "Sec. 5a. There is board examiners. hearing

created appointed by senate, board of examiners to consist of 3 members to be governor, by and with the advice and of the consent years may for terms of 6 each .... of the be Members board governor misfeasance, removed for and nonfea malfeasance hearing any sance in office. . . . Such board of thereof shall conduct examiners or member hearings questions on to board referred CSC 603 of Labor v invalidity any "[i]f This Court said there is appear clearly [the 1945 it act], must so as to leave any no room for reasonable doubt that it violates presumption every Constitution, reasonable and intendment must constitutionality resolved in favor of the Cady City Detroit,

of the act. (1939)]; In [286 Mich 499 NW 805 re Brewster Housing Site, [289 Street 291 Mich 313 NW 493 (1939)].”88 rejected

The Court first the claim that the cre- Hearing infringed ation of the Board of Examiners prerogatives Liquor on the of the Control Commis- sion under the constitution. Because the Board of Hearing merely

Examiners made recommenda- right accept tions which the commission had the to infringement refuse, no Court saw on the prerogatives.89 commission’s rejected Attorney The Court then General’s challenge to the 1945 act based on the 1940 civil service amendment to the Constitution.90 The Attorney argued legislature General had that ”the commission, regulations such rules and under as the commission may commission for decision. Each member of the report findings establish. The examiners shall their to the is authorized oaths, examine witnesses and administer ... In all instances when a suspended license is to be either or revoked the commission shall complaint whereupon cause a to be filed with said board said board shall conduct a regulations complaint.” limited to the facts and law and rules and liquor specified control commission as in said 133; PA 1948 CL 436.5a. 88Case, supra, p 638. board, Comm, Liquor supra, said the Court in Case v Control 639-640, pp was power suspend did not have the or revoke a license and "merely fact-finding findings board whiсh makes its to the complete power” suspend commission” which "retains and revoke "accept accept findings the licenses and to or refuse to delegation board.” There nowas unconstitutional of the commission’s (Const power 1908, 16, 11, under the constitution art now Const § 40) complete art to exercise control of the § alcoholic bever age Hearing traffic to the Board of Examiners. The before the ministerial, merely having board was the board but limited duties. 6, 22, excepted See Const art which "members of boards and commissions.” 424 Mich 571 Opinion of the Court language] by the constitutional

may not add [to labels; calling the examiners tags the use of or take act], a 'board’ does created [the service,” argued and had further them out of civil to the "ancillary that the of examiners was board an indepen- Control Commission” and not Liquor unit of subordinate "agency government dent or of and under the governor” part the but rather Control Com- Liquor "direction and control” mission.91 noting that the members of opinion,

The after Governor, appointed were their by board office, grounds term of and the limited salary, removal, that of the board concluded members excepted were from civil service because were they members of a board or commission. Court said Legislature that had importance language created a board of that showed that the ees was not

appointment employ- of mere contemplated, but an additional auxil- iary body to assist the commission. The mere employees labeling body of a as a board would insufficient, legislative but that was not the wording intent as seen of the act. It was to a real be be would not bind the referees which was to commission, independent findings but its

commission. We believe body importance the creation of a dignity, of such legislature characterized as a board, as a of fact created board which is matter excepted by expressly Cases to the the civil service amendment. contrary attorney general cited analogy employees bear some but refer to and not to a board of this character. We find that authorized, properly they board was and that have power the fact-finding body; auxiliary, constitutional to act as an hearings must be had before briefs, Comm, Liquor supra, See records and Case v Control supplemental Attorney General’s brief. CSC v of Labor created, the board when but the final decision rests with the commission. If the commission acts capriciously, fraudulently illegally, certiorari remedy provided by the Liquor act. [Case Comm, Control supra, pp Emphasis sup- 641-642. plied.] dissenting opinion in the instant case states that, while the statute construed in Case autho- any rized the board or member thereof to conduct hearings questions by on referred to the board commission, "in instantes where the commission complaint against licensee, filed a provided a the statute hearing.

that the board should hold a Individual members of the board were not autho- hearings. Hence, rized to hold such the Board of Hearing required by Examiners was statute to hearings complaints Liquor by conduct on filed (Em- entity.”92 Control Commission as a collective phasis original.) in purpose Hearing

The Examiners, the Board of Case, in stated was to address the "evil having liquor complaint commission make the testimony and then take and make the final deci- Legislature hearing sion. The wanted a board of testimony examiners to first take the and make findings for the benefit of the commission” which would then make the decision.93The 1945 act was authority Liquor a limitation on the of Control ‍‌​‌‌​‌​‌​​‌​​​‌‌‌‌​‌​​​‌​‌‌‌​​​​​​‌​​‌‌​​​​‌​‌‌‌‍clearly Commission. The act of stated that the "board hearing any examiners or member thereof shall hearings questions conduct on referred to the by (Emphasis sup- board the commission . . . .” plied.)94 only questions The kinds of that the com- required mission was to submit to the board for 92 Post, pp 646-647. 93 Comm, Liquor supra, p Case v Control 640. 18.975(1). 436.5a;

94 1945 1948 CL MSA PA See n 87 for text. 571 424 Mich complaint

hearing seek- in a those involved were ing suspension There is a license. revocation of question any was kind of other no evidence board the commission ever submitted hearing. practical of the act construction board, in adminis- embodied commission and the any regulations,95 member of was that trative hearing complaint on a could conduct board seeking suspension against or revocation a licensee Napuche Liquor Comm, Control In of a license. (1953), this Court 401; 58 336 Mich NW2d suspended Napuche’s follow- license was said that by by regulations promulgated confirm that the the commission single hearing hearing commissioner. examiner or and is conducted was AACS, AC, 436.1909, promulgated Currently, R R in 1977 436.1901, hearing provides conduct the commissioner shall "[a] AC, R, complaint.” provides hearing 436.1917 violation that a "licensee may request heard commissioners. Unless an discretion, on the aggrieved by commissioner . . . an order of a hearing” appeal appeal shall be and that an a violation consisting appeal of three administrative the violation board, appeal appeal its is taken and grants appeal, commissioner is an the order of the subject only subject review and is to further administrative judicial review. AACS, superseded 1960 1960 R 436.701. The rules These rules hearing” spoke shall conduct the stated that "the commissioner of the that decisions were made Again, findings it is clear and decision of "the commissioner.” individually collectively. and not AC, superseded seq., The 1960 rules R 436.461 et which were Michigan promulgated Administrative Code 1954. authority under the of the 1945 act. See ACS, They promulgated were as 1947 No 11, 25, ACS, 14, 6, p p and 1948 No in 1947 and 1948. These rules Hearing complaint stated that the shall be filed with the Board of by hearing Examiners examiners the commission. It is stated that board of "[t]he hearing any or thereof shall conduct the member hearing any was of "a That the before the board or member thereof complaint against which sets forth a "form of notice to appears subparagraph K of R 436.461 a licensee” licensees,” which form states "[cjommission complaint that the has caused a to be filed with the Hearing alleging Board of state of to the the pending your appearance the member thereof Examiners a violation of the laws of the Michigan regulations respect and the of the commission with "[fjailure operation your of to attend establishment” that hearing suspension your license will result in immediate of Examiners, Hearing or before said Board of thereto, complaint.” assigned in answer to the Dep’t op CSC Labor Opinion the Court of on examiner "hearing hearing held before ing a of 6, 1950, provisions the pursuant September of Examin Hearing the Board [creating 5a section act, control as added Michigan liquor the of ers] ”96 The (Emphasis 1945, supplied.) 133 . . . PA No hearing Napuche substantiates record of Board member of the conducted one was complaint the Examiners on commission’s Hearing con the member who Napuche, and that against to the findings hearing the forwarded his ducted by any any consideration commission without or in of any member of the board action other than the decision of the board other behalf hearing.97 the the conducted member of board who given opportunity to cross- opinion "Full was further stated: The examiner,” "[following arguments the make examine and to the forwarded to findings hearing, then dictated his which were the examiner Id., supplied.) p (Emphasis 401. the commission.” 28, 1950, Liquor complaint July by the Control The was filed signed secretary of the commis It the executive Commission. was Michigan, Hearing captioned: Examin of It was "State of Board sion. July ers, Liquor It was dated and the address and Control Commission.” Cafe,” Napuche, Bronx "Re: P. d/b/a stated kind of ing the Christo Then, "Complaint” then the Board of Hear license. "To Commission,” Examiners, Michigan Liquor and then Control persons age twenty- complaint under the of concerned a sale years. one captioned: transcript complaint of on the was The Examiners, Hearing Michigan Liquor Control Commission” "Board of 6, 1950, Sosnowski, September B. and was held on "Before: John Examiner, findings Hearing Hearing Board of LCC.” The 7, 1950, signature September was dated and the set Examiners were forth Sosnowski, Member, Hearing as follows: "John B. Board Examiners.” following a commission issued its decision on October The meeting November puche Michigan two day, suspending license. On of the commission on that 20, 1950, attorney Na- advised commission that an findings "appeal to the desired to the Commissioner Liquor held before Commission.” was Control January 4, 1951, and further members of commission on testimony was taken. commission affirmed the earlier decision. Wayne petition for a writ was filed Circuit A of certiorari with the 22, 1951, January aside of the commis- Court on sion on the not with this which set the order findings ground did "that the Commission that made appeal Attorney hear the evidence.” The General filed a claim Court, the decision which reversed and reinstated commission. Mich creating

The view that act the Board of Hearing required hearing Examiners all three complaint seeking examiners to hear a routine suspension liquor or revocation of a license is contrary purpose language to the and clear practical by act, the construction the commission reported and the board in reflected decision regulations, this Court the administrative hearings way and is inconsistent with of this generally country.98 kind are conducted this

VII making Liquor amendment, The 1957 Control hearing Commission quor officers Li members only years Commission, Control came two designating deputy after the 1955 amendment members of the workers’ compensation commission compensation as workers’ referees.99 legislative approach The difference in in enact- ing compensation the 1955 workers’ and 1957 liquor Leg- control amendments indicates that the hearing islature chose to retain some officers in system the civil service and to remove others from 98 three-judge hearing exception. A trial is a rare The United States provided three-judge hearing Code at one time for a where the in the constitutionality federal court. 28 USC action challenged of a state or federal statute was provision 2282. This is now limited to an challenging constitutionality apportionment of con gressional any legislative body. or districts statewide 28 USC 2284. (Part 2), See 7 Moore’s Federal Practice 65.16. ¶ Three-judge courts have also been convened in the circuit court on complaints involving the rarest of occasions to consider matters regarded by judges raising important questions as and novel law. healing hearing A conducted three officers is unknown or so may hearing rare it is unknown. There have been an occasional difficult, novel, particularly two or more examiners in a or as important case. It is inconceivable that a a matter on suspend liquor routine whether to revoke a license has ever or person. would ever be conducted more than one 99See n 73. Dbp’t 609 of Labor CSC v op Opinion the Court in or a board them organizing system by the appointment gubernatorial subject commission fixed terms. of value precedential the question The referees Case, holding Liquor that in decision this Court’s re- hearing may officers Control Commission out pointing system, civil service from the moved was collective-decisionmaking argument their not con- was Case in and therefore not advanced that a is indeed well-established The rule sidered. not decided.100 is and considered not briefed point the decision only it is Case nevertheless —because the words "boards meaning addressing argu- point the focal been commissions” —has appeal. in this ments of counsel with in Case was concerned obviously This Court there Examiners Hearing Board of whether or, use the Court’s "proper” a challenged was It saw hearing referees.” term, "a real board as employees labeling body "a problem collective-decisionmaking argu- While board.” decided, considered, briefed, was not there ment understood knew and surely the justices would that board members of examiner hearing act alone. in Case Court did it what this may, that as

Be it did was it said. What as what important remove, by decision to legislative the 1945 sustain board, in control liquor them organizing the 1940 effect of operative from the examiners concerning to the constitution amendment system. state civil service met. Convention Constitutional

In this Court’s aware of presumably delegates were Ajluni (1880); Duffie, v West 11; Allen v 4 NW 43 Mich (1976); Ed, In re 462, 465; 245 NW2d 49 Bd of Mich Bloomfield Apportionment 96, 113-114; 321 Legislature 1982, of State 413 Mich — (1982). NW2d 565 424 Mich

decision Case which in effect held that a hear- ing officer need not be included the civil service system.101Nevertheless, the words "boards and commissions” were not modified in the 1963 Con- preclude stitution to the inclusion of a individually collectively officer—who acts and not —as a member of a board or commission.

VIII decisionmaking If collective were the determina- Legislature readily criterion, tive could create hearing a board of officers whose individual deci- apprоved by sions would become "collective” when hearing assigned officer, another with a third to be panel they agree.102Similarly to the if could not there could be "collective” action "boards” of parole probation or officers or social workers. Clearly something more or other than collective decisionmaking required to constitute a real or true board or commission. spoke "importance,” "dignity,”

Case and "in- dependence” distinguish a "real board” from "body employees” merely labeled as a board. provides Magistrates

Act 103 the Board of "independent body” is created as an and an "au- delegates "The pre- to the 1961 Constitutional Convention are meaning sumed to have known and to have understood the in these earlier decisions to the ascribed language of the 1908 Constitution. language This was retained them in the 1963 Constitution without response in modification lished to the earlier decisions. Under well-estab- principles, open place it is not to us to a new construction on language.” Canvassers, this Bds of Co Road Comm’rs v Bd of State 666, 676; (1974). 391 Mich 218 NW2d 144 Similarly Canvassers, Michigan see Co Road Ass’n of v Bd of State 101, 121-122; (1979), 407 Mich City 282 NW2d 774 v and White Arbor, 554, 566; (1979). Ann 406 Mich 281 NW2d 283 wcab, excepted the members of which are from the civil system, service without makes decisions de on novo "cold” transcribed records hearing seeing live witnesses. CSC of Labor entity.”103The members of the board are tonomous appointed Governor, like the members of or commissions. Their term most other boards years. term of That is the maximum office is four for a mem under the constitution office authorized commission.104 ber of a board or validity Court sustained Case the This perceived Hearing it Examiners because Board of of the members of that board the role or function appointment by important and their to be status — salary four-year office, Governor, term of dignified. the Board of The members of —to be Magistrates 103 have a role under Act established importance, similarly greater or function of compara- appointed by Governor, will be are tively well-paid, and have stature. magistrates, like the examiners except subject

Case, to removal for cause.105 are not discharge function, In the magistrates of their independence, much or more have as importance autonomy, members most other boards or commissions.

A and the referees The Civil Service Commission argue magistrates performing that the will be hearing particular have cases—as same duties — They performed by the referees. reason that been position they hold must therefore remain the in the civil service is that same now

system. Equally however, true, magistrates performing will be deciding particular with a cases function — performed large finality has measure been —as excepted the members of the who are wcab, from the civil service system._ 103 ^[104] MCL Const See n 16 and n 87. 418.213; 1963, art MSA 5, 3.§ 17.237(213). Mich op Opinion the Court argument by

This the Civil Service Commission proceeds assumption and the that referees on the granted because referees were civil service position compensation status, ing Legislature workers’ hear- organized by officer could not have been hearing in a board of referees or exam- They arguing iners. referees have a permitted also seem to be that right in the

vested decisions acquire referees to civil service status precludes Legislature creating from hearing board or commission for cases as it has done for examiners compensation workers’

Liquor Control Commission cases. exception

With the commissioners Liquor replaced Commission, Control who Hearing the members of the Board of Examiners practice Case, it considered has indeed been the provide hearing in this state to service officers with civil It status. is unclear to what extent that thought-through a result of inertia or a decision policy reasons. approximately fifty years It has been since the growth began of administrative law to accelerate days proliferation in the of the New Deal. The agencies boards and at the federal level was later paralleled at the state level. There followed a procedures federal administrative act106and subse- quently procedures state administrative acts107 requirement with a of a in contested procedural guarantees provided by cases. The federal and state constitutions108and these admin- procedures istrative acts created a need for hear- ing officers at the administrative level in ever- increasing numbers._ Act, 11, 1946, 324, Administrative Procedure June ch 60 Stat

237; 5 USC 1001. 5Now USC 551. seq.; 3.560(7), 1948 CL 24.71 et 107 1943 PA MSA now MCL 3.560(101). 24.201; MSA 108 Const, V, XIV; US Ams Const art 17. CSC of Labor Opinion of the Court hearing process, beginning of this theAt persons person or to the an aide officer was often making charged aide re- the decision. with making charged persons person with or lieved the the evidence. need to hear the decision prepared evidence, the aide After report findings proposed some- of fact and with proposed of law conclusions or times conclusions to the decision- forwarded then be that would Such recommendation. without a maker persons with process, in the decisional influential were nominally the decision.109 did not make at least but Hearing are mere recom- decisions officers whose might de novo that are reviewable mendations understandably persons performing regarded be performed other civil to that a function similar persons that should and hence as servants thereby from removed in civil service included political process. magis- compensation workers’ The decision of a gov- however, the decision will, stand as trate In de novo. ernment, and will not be reviewable noteworthy did not it that Case this connection importance— require be of that the decision of the Board examiner members findings only a recommen- without Examiners filed govern- placing employees justify dation —to separate performing board or ment that role protec- from the commission and hence removed tion civil service.

B Legislature least has created at Since particu- to address nineteen commissions or boards (2d 17:11, ed), §§17:1-17:17, Davis, 17:14. 109 3 Administrative Law 906; Morgan, 468; L Ed 1288 United States v 56 S Ct 298 US (1936). 424 Mich surprising lar concerns.110It would be if some department government of state had not thereto- fore addressed state concerns, some of those and some

employee with civil service status was charged responsibil- with or had not exercised the ity acting addressing of for thе state those Surely, concerns or some of them. ality the constitution- legislation creating of a commission or board challenged by could not be a civil servant on the agency politicize gov- basis that the new will 110 Department of Labor. Commission on Agricultural Labor, 1968 1978 35, 16.490; 3.29(390), PA PA Blind, MCL MSA Commission for the 260, 393.352; 17.581(2), Commission, MCL MSA Construction Code 230, 125.1503; 5.2949(3), 1972 PA Safety MCL MSA Construction Commission, 154, 408.1018; 17.50(18), 1974 PA MCL MSA Elevator Safety Board, 227, 408.807; 17.495(7), Wage 1967 PA MCL MSA Board, 154, 17.255(5). 408.385; Deviation 1964 PA MCL MSA Department of Natural Resources. Air Pollution Control Commis- sion, 348, 336.13; 14.58(3), 1965 PA Exposition MCL MSA and Fair Council, 361, 285.169; 12.1280(59), Grounds terways 1978 PA MCL MSA Wa- Commission, 320, 281.502; 3.534(2). 1947 PA MCL MSA Department of Commerce. Commission, Boundary 191, 1968 PA 123.1002; 5.2242(2), MCL Commission, MSA Mobile Home 1976 PA 419, 19.855(3). 125.1103; MCL MSA Department Management Budget. of & Commission on Indian Affairs, 195, 3.547(101). 16.711; 1972 PA MCL MSA Department Licensing Regulation. & Safety Carnival Amusement Board, 225, 408.653; 18.484(3), 1966 PA MCL MSA ’Collection Prac- Advisory Board, 361, tices 445.226; 19.655(36), 1974 PA MCL MSA Registration Planners, ’Board of Community for Professional 218, 338.1358; 18.170(8), PA Examiners, Foresters, MCL MSA Polygraph ’Board of Forensic 295, 338.1705; 18.186(5), 1972 PA MCL MSA ’Board of ’Board of 78, 338.723; 13.215(3), 1955 PA MCL MSA Hearing Dealers, 265, Aid 338.1454; 18.276(4), 18.275(3), 1966 PA MCL MSA Horology, 201, ’Board of ’State 338.1403; 1965 PA MCL MSA Marriage Counselors, 292, Board of 338.1037; 1966 PA MCL 18.398(7), MSA 338.1857; ’Board Massage, 251, of Examiners of 1974 PA MCL 18.360(7), Physical MSA 368, 368, Therapy, Board of 1978 PA 333.17821; 14.15(17821), MCL MCL Work, MSA Psychology, Board of 1978 PA 333.18221; 14.15(18221), MSA ’Board of Examiners in Social 352, 338.1753; 1972 PA 18.365(3), MCL Safety MSA Ski Area Board, 408.323; 18.483(3), PA MCL MSA Toxic Substance (department unclear), Control Commission 286.183; 1978 PA MCL 14.529(103). MSA Occupational Code, *1980 PA seq.; MCL 339.101 et MSA 18.425(101) seq., et regarding consolidates and reclassifies the laws regulation occupations of certain occupa- and creates a board for each procedure licensing. tion and Dep’t op CSC Labor will the concern or effort to address ernmental role in servant’s or reduce civil eliminate addressing that concern. licen- of some state revocation

The issuance and independent primary boards function of ses is the are commissions,111while other state licenses or principal de- or division a bureau issued licensing government.112 partment Where of state department, of a of functions is one a number of licenses issued a considerable number there are supervision department, may there be less employees department involved head employees process licensing who than in the has other no on a board or commission serve power in the increase business. The resultant super- operate relatively free of civil servants who creating legislation may a board or vision lead political accountability. to increase commission Surely formerly con- exercised a civil servant who say power not be heard to siderable legislation could creating is the board commission might poli- either because this unconstitutional might, licensing process he or because ticize the years effort, be re- of faithful service after government. quired to alter his role C system relates to the executive The civil service government. exceptions The branch of state employees employees of of record and courts exceptions Legislature civil take out of the are to system Governor, and the control of the service 339.2002; licensing engineers, MSA The MCL architects 18.425(2502), brokers, 18.425(2002), 339.2502; MCL MSA real estate dealers, 19.855(3), 125.1103; exam MSA are and mobile home ples MCL by a board or commission. of licenses administered 112Mechanics, Regulation, Certifi of Automotive Mechanic Bureau Division, 257.1308, 9.1720(8), 9.1720(9); 257.1309; MSA cation MCL 287.333, 287.334; Agriculture, shops, MSA Direсtor of MCL Pet 12.481(104). 12.481(103), Mich appoints who the members of the Civil Service employees separate Commission, of the other two government, judiciary branches of and the Legislature. preserve Similarly, indepen- to higher dence of from excepted. institutions state education gubernatorial employees control, their are in the

Persons forces of state armed excepted they part are because are not civil service.113

Turning exceptions exemptions to the in the they appear generally branch, executive characterized popular officers) to be by policy-making. Positions filled (principal election, the heads executive twenty departments not more than positions policy-making are definition all exempt positions principal departments the are in the

policy-making except for not more than one position department required in each may policy-making.114 but be be agree We all that however one characterizes the function of an administrative officer or appellate member, tribunal it is clear that a real may or true board or commission created perform adjudicate par- no function other than ticular cases. Unemployment Compensation Commission

Appeal gubernatorially Board was extant as appointed years three before civil service amendment was added to the constitu- tion in 1940. The Civil Service Commission

recog- appeal nized in 1941 that the members of that system. board were not covered the civil service employment security appeal board/board review has and has no had function to other than adjudicate particular cases.115_

113See n 1.

114Id. accompanying See ns 84 and 85 and text. CSC Labor of op Opinion the Court Similarly, had no function has and has the wcab particular adjudicate It is thus than to cases. other persons other who have no function clear that adjudicate particular may mem- cases than to excepted is of a board or commission bers system. the civil from service

D generally placed in A or is board commission government. charge of the of business some "important” commission is a or Whether depends business, the on nature of the "dignity” authority power it. to The entrusted or relates to status of a board or commission stature, authority, importance business, of as the its well power. gener- are and commissions Members of boards appointed ally and sometimes the Governor Legislature. are accountable the only The members They appointing authority. not have

to the do supervisor to can tell them how and what who part They of a or decide. are not bureaucratic do "independent.” hierarchy, and hence are chairperson not is A of a board or commission superior no members. He can other how to vote or decide more tell the other members judge of a court could tell a Court than chief probate judge Appeals, circuit, how district or function, a In decide. member the exercise decisional chairperson.116 not accountable to Magistrates are members of Board appointed only by, to, thе are accountable They part are not of a bureaucratic Governor. hierarchy. func- In the exercise of decisional power chairperson productivity prescribe standards granted gives essentially power the chief had him this Court impinge power judge multi-judge MCR That does court. 8.110. circuit, Appeals, independence autonomy dis or Court of on the trict, multi-judge probate judges in courts. 424 Mich 571 Opinion of the Court they supervisor

tion, do have a can who tell They them how and what to decide. are therefore "independent.” Magistrates is Board of cre- separate apart appellate ated and from the com- Compensa- mission and the Bureau of Workers’ accordingly separate tion, and is a autonomous Department entity within the of Labor. Magistrates The business of the Board of and of appellate adjudicating the commission is contro- compensation under versies arise the workers’ magistrates law. Both the the and members of the appellate authority commission have the power magis- to decide those controversies —the trates at the appellate level of members appeal. business, commission on That authority, power importance is of sufficient justify independent the establishment of an purpose discharging and commission for the governing resolving function involved those controversies.

E argued politicize It is Act 103 that because the will workers’ compensation magistrates will serve reappointment dependent for fixed terms and on gubernatorial favor. always

The members of the wcab have served reappointment plea- terms, fixed with at the sure the Governor. The decisions of referees were reviewable de novo members of wcab panels only who serve for a fixed term. Act politicize compensa- does not further the workers’ system. tion preclude Legisla-

The constitution does not requiring political per- accountability ture from CSC Labor involving quasi-judicial decisions who make sons factfinding finding.117 law by the to be made

The character of decisions quasi- magistrates essentially the same are Employment judicial Rela- made decisions Employment Security Commission, the Com- tions Liquor Review, Control Com- mission Board mission, licensing The mem- and numerous boards. gubernatorial agencies all those are bers of appointees do not serve for fixed and who terms tenure. have civil service liquor physi- a a revoke license or

A decision to professional veterinarian’s, cian’s, or other nurse’s grant deny person’s license, from an or relief deny unemploy- practice, to or unfair labor award compensation benefits, no less are decisions ment important deny award or work-

than whether to compensation are Those decisions ers’ benefits. made, by of boards and commissions members appointment subject to the and are tenure whose political

process.

F reports only some officers state of compensa- findings or Workers’ recommendations. greater however, are, tion referees’ decisions solely they importance decisions, not are because appeal judg- findings. an Absent wcab, en- the circuit court ment can be obtained from forcing 1975, Since when a referee’s decision.118 seventy appealed to the is referee’s decision wcab, any percent is the referee benefits awarded decisionmaking Requiring accountability is political such provisions that limit the terms of the constitution consistent with the justices judges years of this to six office of of all courts of Court reelection. justices eight requires judges for years, to stand 9, Í2, 16. §§ Const art 413.13; 17.237(863), 418.863; 17.187. 1948 CL MSA MCL MSA 424 Mich 571

required paid during pendency to be appeal.119 importance. Those are decisions of compensation hearing

Workers’ officers’ deci greater impor sions will henceforth have even magistrate’s longer tance. A decision will no only novo, reviewable de and will be reviewable for errors of law and a determination it whether is supported by substantial evidence on the whole magistrate’s seeking record. A decision on a claim only $2,000 or less is reviewable for fraud or error Appeals law the discretion of the Court of this Court.120 legislative persons decision to constitute importance

whose decisions have that as members gubernato- of a board or commission who serve appointment purpose rial removing for fixed terms subjecting

them from civil service and appointment political their process retention to the entirely consistent with constitutional principles contemplate persons exercis- ing power may certain kinds shall or be made politically legislative accountable. That decision making compensation hearing workers’ officers political process more accountable in the was conjunction legislative made in with the decision to make their decisions more final and hence more important. nothing pretextual

There is about the increase power compensation in the of workers’ power officers. There is a real increase in their and ‍‌​‌‌​‌​‌​​‌​​​‌‌‌‌​‌​​​‌​‌‌‌​​​​​​‌​​‌‌​​​​‌​‌‌‌‍importance Legisla- in the of their decisions. The merely ture did transfer the duties of the referees to the magistrates._

119See n 21. $2,000 Claims separate or less are to be heard in a division of by magistrate. magistrate’s the board decision in matters heard in nonappealable that division is "final and in the absence of fraud” provided 17.237(841)0). 418.841(9); in the constitution. MCL MSA Dep’t op CSC Labor

G Hearing power officers who have the make appealed and decisions that become final unless findings required to be considered con- whose are appeal supported by if substantial clusive on an government in will have a function state evidence similar importance adjudicative in to that of the appellate employ- tribunals, and wcab, security They of review. will be decid- ment board high ing particular cases and controversies with degree finality. purpose primary

A 103 is to make the Act magistrates in final most cases. decisions of While an relatively appeal filed, it intended can be appeals num- will be successful. The few ap- compensation ber of members of the workers’ pellate appellate has been reduced because the tribunal reduced from factfinder to

role has been The decision of the a limited review for error. magistrates the final will in most cases constitute magis- making decisions, In their decision. trates will be performed by performing a function similar to that of that when the members wcab thought performing a function of were importance dignity to be removed sufficient from the civil service

system. magistrate, compensa- A in a workers’ judge claim, tion will have the same role as a judge when the acts as trier of fact an action brought right A to enforce a created statute. magistrate, judge, like a will find the facts with a large finality apply the law to the measure doing necessary facts, often find it so will compensation act. In so construe the workers’ construing magistrate may act, not have guidance reported appellate decisions. The magistrate judge of a and their function of a statutory authority power claim a 622 424 Mich 571 findings indistinguishable. essentially are subject judge if fact of a circuit are to reversal (when Appeals clearly Court of or erroneous definite and firm convic- this Court is left with the tion that a mistake was magis- while made),121 findings appeal on of fact can be reversed trate’s only evidence on the if there is not substantial support record to the decision. whole magistrate’s by is reviewable A decision pre- appellate newly constituted commission under applies judicial cisely the same standard that of decisions of administrative tribunals review dignity His decision has same generally.122 importance regard in that as the decision Employment Security of Re- Commission Board Employment Commission, view or the Relations subject (by the which are to further review circuit Employment Security court for the Commission Appeals by the Court of Board of Review,123 Employment under a Relations Commission)124 substantial-evidence standard. magistrate’s appellate A decision vis-á-vis commission has thus same stature as Employment Security decisions of the Commission Employment Board of or Relations Com- Review potential by mission. The for review or reversal which are This review shall whole record. trative officer or such final law; are ings provided by law.” Const ses, 121 supported by competent, NW2d shall MCL MCL MCR and, "All final shall be conclusive in cases in 421.35; 423.3; judicial 2.613(C). decisions, findings, rulings subject Findings (1976). decisions, findings, rulings MSA MSA agency existing include, Tuttle v which quasi-judicial 17.454(3), direct review 17.537, of fact in workmen’s as a material and substantial evidence on the the absence of fraud unless otherwise art MCL minimum, MCL under the constitution or of State and affect 28.§ 421.38; 423.23(3); and orders are authorized the courts as required, and orders of the determination whether MSA 17.540. Highways, private rights compensation proceed- MSA whether provided by 17.454(25). 397 Mich any the same adminis- or licen- law. law, 44; CSC of Labor Opinion of the Court appellate magistrate’s commission of a decision important insufficiently does not make the decision when the review is under the same limited stan- applicable by judge dard that is to review a circuit Employment Security of a decision of the Commis- by Appeals sion Board of Review or the Court Employment Relations Commission.

H rights argued destroys It that Act employment. in referees continued Although Legislature may not have been position required to of workers’ com- establish pensation system, it referee in the civil service did legitimate expec- may thereby so and have created prom- employment. tations of continued Whatever employment may have been made ise of continued to the referees given they civil service when were can, however, status be without a decision fulfilled Legislature not this Court that could en- large compen- the duties and function of workers’ hearing require they sation officers and be process, tenure selected limited, political process. a different their be they be more accountable The referees have civil service status. Act 103 deprive year A does remains before the referee effective them of that status.

positions are abolished March 1987. There are a number opportunities employment civil service in state government yers. They for former referees. are all law- depart- may employed

Some become in other government lawyers ments of state either as large capacity. number of some other civil service positions There are hearing examiner/officer/referee/Au government. in state The Civil Service responsibility charged Commission is with administering system. the civil service 424 Mich may

Some of the referees be selected qualifications advisory committee for recommenda- appointment tion to the Governor for as members Magistrates of the Board of or as members of the appellate commission, and some so recommended may appointed by the Governor. contemplates July

Act 103 1, 1989, that until appoint, may the Governor with the advice and Senate, consent of the senior referees and former referees to the wcab to fill a vacancy temporarily or to increase the number appeal expedite members on the in the board to decisions large backlog of cases before the board.125

IX Commission, The Civil referees, Service the arguments. amici curiae make additional A argued length It is at some that the elimination position referee was motivated racial and sexual bias. respect

The record of these claims has not developed. been precluded by today’s

The are not referees deci- sustaining sion of this Court the facial constitu- tionality seeking of Act 103 from to establish that racially sexually Act 103 discriminates or in viola- tion of the constitution of this state or of the United States.

B It is Commission, claimed that the Civil Service Legislature, power plenary regulate not the has to employ- the terms and conditions the referees’ ment. 17.237(251X2). 418.251(2); MCL MSA CSC Labor Opinion op the Court power judge agree the circuit that with the

We "regulate all Service Commission of the Civil conditions of employment in the classified serv Legislature preclude from not ice”126 does eliminating position it classified as within once is a system. service the civil authorizing provisions Service the Civil empow- positions” "classify all

Commission to ering appointing abol- to "create or authorities positions effi- of administrative for reasons ish Legislature ciency”127 creating from in terms bar the do not eliminating positions positions old new responsibil- respective changing duties and ities by law. authority earlier, that there is

As indicated requir- by judge-made Legislature ing rule is limited merely good faith, and not it act position non-civil service a civil transfer service Legislature again It relevant status.128 did referees to merely the duties transfer Magis- the Board of the members of power, magistrates with the the in It vested trates. presently members of vested wcab, finality facts with substantial determine the finality power full the facts with to determine involving $2,000. less than in cases position question the civil within whether system for administra- be abolished should service question efficiency whether than is a different tive properly position of the outside be created a civil lition of a can concerning language system. abo- The service efficiency position for administrative positions speaks in redundant of the elimination of power to do so is vested the classified service. job may department that no see a heads who in Const Const art art 11, 5, 4. 11, 5, ¶| 4, 8. § f ^[128] See n 54. 424 Mich

longer provision needs to be done. This does not authority Legislature provide limit the formerly performed by that a function employees civil service performed by henceforth shall be a sys- board or commission outside the civil service Legislature powerless tem. The not is to eliminate position government a it once is established. question

The critical in the instant case is not Legislature whether can abolish or eliminate a position, but whether it can transfer duties and power person holding position exercised covered civil service to a board or commission. position so, It eliminated, if can do then the effect formally abolished, whether or duty power because then no further to the is attached position, power the duties and of which have been so transferred. previously Legislature stated,

For reasons validly power transferred the duties and Magistrates office of referee to a Board of nection with a substantial and in con- power increase in the importance compensation of the workers’ hearing officer function.

C abolishing position §206, We hold that of a board of creating referee, §213, magistrates, of Act 103 do not violate Const judgment 11, § art 5. The of the circuit court is reversed, and we remand to the circuit court for plaintiffs’ further consideration of other claims. injunction 2, 1985, entered December is dis- solved. 7.317(C)(3),

Pursuant to MCR the clerk is di- judgment immediately. rected to issue the order Cavanagh Williams, C.J., Boyle, JJ., J. Levin, concurred with 627 CSC Labor Opinion by Williams, C.J. I concur with (concurring). C.J. While Williams, 213 of 1985 opinion holding Justice Levin’s § 103, Compensa- PA creating the Board of Workers’ constitutional, I write Magistrates, specially tion is particu- I think are emphasize points to several important. larly in presented

The issue this case is whether Compensation Magistrates, Board of Workers’ adjudicative, adjudicate duties of which are who perform but who certain admin- individually, may istrative functions collectively, falls within exception "members of boards and commissions” the civil service amendment to the 1963 Constitu- tion, 11, art 5. My upon concurrence is based § following reasoning.

First, rule of primary construction inter- preting that, constitutional language is wherever possible, interpretation an that does not create constitutional invalidity preferred to one that does. Council No AFSCME v Civil Service Comm, (1980). 408 405; Mich NW2d To Bricker, the same effect is People v 389 Mich (1973): 524, 528; 208 NW2d 172 duty We are Michigan bound under the Consti- preserve tution to the laws of this state and to that end to construe them if they we can so that conform to Federal and state constitutional re- quirements. Second, in order to clarify meaning of a constitutional provision, the circumstances sur- rounding its adoption can be examined. Council 11, supra. No The focus of those who enacted the amendment, civil service 6, 22, Const art 1940 was not only eradicate the "evils in state civil service spoils under Council system,” No 11, 401, provide but sufficient exemptions Mich Opinion Williams, C.J. government operation representative

permit in- exemptions Such public responsibility. with commissions.” of boards and cluded "members carefully important this it juncture, At is the language1 of civil service consider the exact its surrounding the circumstances amendment and language, pertinent the to the exact adoption. As reads follows: text as shall of state civil service consist The classified except filled those positions in the state service all election, depart- principal of

by popular heads commissions, ments, the of boards and members of boards and commis- principal executive officer of heading principal departments, employees sions record, legislature, employees of the em- of courts ployees higher of educa- the state institutions state, tion, in the forces of the persons all armed gover- positions office of the eight exempt nor, in the department, principal when each within significant respect language with of the amendment The exact excepted exempted positions namely argument, that all to another are are election, excepted positions "policy-making.” many of the It is true that popular including policy-making, all most but not "those filled hand, departments,” principal etc. On other heads of the making many "employees legislature,” assist in to policy, door attendants et while certainly policy, legislators it is that make functions, al., they perform cannot valuable while "employees policy-makers. institu As for the state be considered higher persons in the armed forces of tions of state,” policy-making civil service amendment policy-making ted ing.” (Emphasis education all [and] perform majority of it is that the vast them do clear Finally, that functions. it is clear the drafters exemptions recognized included both that the permit non-policy-making positions. The drafters exempt positions, policy-mak "two of which shall be other one added.) addition, Compen- contemporary Unemployment In to the reference Appeal exception in- indicates for "boards” sation Board that recognize adjudicative said it is often cluded function. We but, leading "policy,” judicial opinions is indeed if that enunciate "policy,” legislative policy of believe it is not executive or which we therefore, conclusion, speaks. find that the amendment whereas function In we would argue "policy-making” may a a factor the inclusion "exceptions” coverage, it is not within the to civil service non, non-"policy-making” exceptions qua are sine also as it is obvious that specified clearly contemplated the amendment. CSC of Labor Opinion Williams, C.J. head, requested empt positions, department two other ex- by the policy-mak- one which shall exempt ing. may commission The civil service na- positions policy-making three additional of a principal department. ture within each [Const Emphasis 5. art added.] surrounding adop- As to the circumstances amendment, important tion of the civil service it is to note that at the time the 1940 amendment was adopted legislation touching upon there existed First, two points question legislation here. cre- ated a having solely adjudicative duties. Second, legislation created at least two multimem- ber boards or which performed commissions their through functions individual primary members. The Unemployment Compensation Appeal Board members, consisted of three appointed the by Governor, and had solely adjudicative duties. See time, 1937 PA 347.2 At the same the decision of an individual deputy member of the Acci- Industrial (later dent Board compensation referred to as commissioners) would stand as the decision of the board or the commissioners unless review was sought. addition, 1921 PA timely 60. In exist- ing legislation provided that "The [liquor control] commission shall have the right power and suspend or revoke and any commissioner desig- nated by the chairman shall right have the and power to suspend pending a prompt hearing any and all licenses . . . .” 1937 PA Thus, 20. it was well within the contemplation of those who framed the amendment to "except” from the clas- 1) sified civil service a performed "board” which solely adjudicative functions similar to the one at 6, 1941, meeting The minutes of a March of the Civil Service adopted by Commission show that an order was the commission stating among exempt that the boards and commissions from the Unemployment Compensation Appeal state civil service is the Board. 424 Mich 571 Opinion Williams, C.J. 2) case, a multimember commis-

issue in this and perform primary functions sion could its which through individual commissioners. Magistrates

Third, of has the the instant Board necessary as that term has attributes of "board” interpreted only in the case been this Court considering meaning purposes of term for Liquor In Case v civil service amendment. (1946), Comm, 632; 314 Mich 23 NW2d 109 Control Liquor creating Control we held that Commission act Hearing Board of Examiners its did because the board not violate the amendment 2) 1) dignity, body importance was independent appellate from the functions Liquor Notably from absent Control Commission.3 requirement any was this Court’s discussion action order the board undertake collective meaning qualify as a board within the addition, In the enacters amendment. Constitution retained the exact

language of the knowledge presumably amendment, with this Court’s construction Case. legislation Case, the us with before

Consonant importance a board of creates dignity. considerable magistrates appointed by are may Governor and be removed Governor 418.213(1), (2); only good MCL MSA cause. (2). 17.237(213X1), magistrates significant have responsibilities which new in com- functions are predecessors, parison by their with those exercised prepare They examiners: must written findings law, MCL of fact and conclusions 418.847(2); 17.237(847X2), MSA their and decisions legal only are reviewable error and are consid- imply merely read because This concurrence should nоt be to body Legislature importance, dignity, and a independence created has required exempt civü The it is to from service. Legislature merely placing has it inside or the choice outside body system if the has these attributes. CSC Labor Opinion by Williams, C.J. ered conclusive if supported by competent, mate- rial, record, substantial evidence on the MCL 17.237(861a)(3). 418.861a(3); MSA A magistrate’s decision in disputes $2,000 over claims or less is final nonappealable in the absence of fraud. 17.237(841X9). 418.841(9); MCL MSA In addition to duties, its adjudicative created newly has certain quasi-legislative quasi-executive responsibilities: It has the authority make rules regulations govern its own administrative hearing procedures, and it has the authority hire and fire 418.213(6), its own MCL employees. (7). (7); 17.237(213)(6), MSA Magistrates The Board of is also independent. legislation The characterizes the board as an "au- tonomous entity” and an "independent body.” (7). 418.213(1), (7); MCL 17.237(213X1), MSA separate board is from outgoing Workers’ Com- pensation Board, Appeal the new Workers’ Com- pensation Appeal Commission, and the remainder Department of Labor. chairperson the board general has the supervisory control over the board’s employees and its work schedule. MCL 418.213(3); 17.237(213X3). MSA addition, In appointment members’ by the Governor and the board’s ability to create its own administrative hearing procedures and to hire and fire employees enhance its autonomy from other power. seats of MCL 418.213(6), (7); (7). MSA 17.237(213X6),

The Board of Magistrates is independent also its adjudicative role. The outcome of cases heard board, while ultimately reviewable appellate commission for errors of law or suffi- evidence, ciency subject to direction aby supervisory authority.

While the Board of Magistrates is not required to deliberate on collectively matters within its adjudicative it authority, may act collectively 424 Mich Opinion Williams, C.J. quasi-executive quasi-legislative functions.

its impose However, requirement not a collective-action Case does appears it on "board” as the term service amendment.4 the civil finding final reason for this The fourth and treating board as is that this statute constitutional requirements comports exempt from civil service purpose underlying of the civil service with the great purpose protect the was This to amendment. partisan hiring from bulk civil servants permitting popular firing time while at the same accountability public representation where good government. appropriate to comports exception only with a reason- not This analysis historically consistent able and language, the in- but serves also constitutional purpose permitting neces- constitutional tended provid- system, thereby sary flexibility both in the protection partisan politics ing job and main- from taining public accountability. connection, In it this Magis- appropriate the Board of to note is trates was genuine widely of a creation especially by supported movement, those both in management and labor interested in effective compen- operation of the and economical workers’ system system, make the more efficient sation representation giving greater public and re- perform particular sponsibility who those public clothed in the interest. These functions performers, magistrates key are the "mere sought employees” that this Court in Case protect overreaching, Legisla- partisan from an supra, legislation Case, 641. The received ture. adopted, time the At the civil service amendment was Civil commission, Racing exempted, the State Commission Service Commission, only Racing This which consisted Commissioner. alone, performing no actions commissioner then and now acted tively. collec 18.966(32). 431.62; exemption Yet his from the MCL MSA civil questioned. has never been service CSC of Labor Opinion by Williams, C.J. bipartisan support throughout history. its It was Republican enacted a Democratic and a House signed by Senate, and a Democratic Governor with general public. acclaim of the media and the Lastly, newly Qualifications Advi- created sory develop qualifica- Committee, which will tions and examination forward to the Governor qualified applicants magistrate posi- names of for against possibility parti- tions, ensures of the mere maneuvering. san magistrates, The fixed terms of for office the only cause,

with removal for will also employment partisan make their secure from swings government. legislation Thus, the strikes healthy balance, constitution, as intended the insulating magistrates partisan between from pressures keeping and them mindful of their weighty responsibility public. to the legislation

Therefore, because the instant lies language within a of reasonable construction amendment, and intentions of the civil service open protec- does not the door for of the evasion purposes amendment, tive the of the I would find that Magistrates of

Board is a "board” within the meaning is, intended of the amendment and there- properly excepted fore, from the civil service. summary, In two rules of constitutional con- primarily compelled analysis: struction presumption this require- constitutionality,

of and the light ment that constitution be construed in circumstances known to the framers at the time of the enactment civil amendment. service Legislation existing permitted at time solely adjudicative "boards” with functions performed boards and commissions which their primary through functions individual members. quasi-legislative Thus, while the attributes quasi-executive policy-making and collective action are relevant the determination whether a board Mich 571 Archer, J. Dissenting Opinion excepted service, legitimately from the civil such

is necessarily not determinative attributes are legitimate exception. attributes which Additional independence, analysis to this are the are relevant importance, dignity board, and the legislation degree strikes balance which protection by the constitution between intended politics repre- against partisan and maintenance government. Application responsible sentative and legislation to the instant leads of these factors Compensation the Workers’ the conclusion Magistrates properly excepted from the Board civil service. legislation circuit court found the Because the face, it did decide the on its unconstitutional plaintiffs’ Finding legis- other claims relief. facially constitutional, we would remand lation proceed- for further this case to the circuit court plaintiffs’ remaining ings on claims.

Cavanagh Boyle, JJ., concurred with Wil- liams, C.J. litigation (dissenting). arises out J. This Archer, challenge legislative to the 1985

of a constitutional reform the workers’ compensation act, 1985 PA of legislation key of are in 103. Two sections dispute: position 206, § of which abolishes the currently by employees held referee § 213, service, within the state’s classified civil which establishes Magistrates a Board of that excepted would from civil service. 103, PA are to decide

We asked whether 213, 418.206, 418.213; §§206 MCL MSA 17.237(213), 17.237(206), service violate civil Michigan provisions 11, § 5 of art Constitu- tion. Magis-

We would hold that because the Board required carry § 213 trates created under is not Dep’t of CSC Labor Dissenting Opinion Archer, J. out of its functions any primary collective purposes it is not a true board for body, exception "boards” and "commissions” to the civil would, therefore, service amendment. We declare 11, 213 of 1985 PA 103 art violates § § Michigan Constitution. Our decision would 103, PA automatically render of 1985 which referee, abolishes the current position and all other sections contained in 1985 PA 103 are delineated as nonseverable from §213 inoperative.

I

Facts 1980, Since Michigan’s legislators Governors and strong have evidenced a desire to reform the In compensation response state’s workers’ system. concerns, legitimate balancing business while 357, the concerns of 1980 PA injured employees, 192-203, 1981 PA 1982 PA and 1983 PA 159 approved were Governors William Milliken and James Blanchard. In furtherance of the reform of compensation the workers’ Governor system, Blanchard, September on Pro- appointed ‍‌​‌‌​‌​‌​​‌​​​‌‌‌‌​‌​​​‌​‌‌‌​​​​​​‌​​‌‌​​​​‌​‌‌‌‍fessor Theodore J. St. Antoine of the University Michigan special Law School to be his counselor on compensation workers’ and to conduct a study report. and issue a

Professor St. Antoine submitted his on report Costs, Workers’ compensation Michigan: bene- ñts and fairness to Governor on Decem- Blanchard ber 1984. Among other contained observations in his report, Professor St. Antoine noted: Hearing referees issue short-form awards with no state- decision, ments of reasons for their and as a result hearings Compen- de novo before the Workers’ Board, Appeal findings sation which announces its of fact and in writing, conclusions law there was 424 Mich 571 by Dissenting Opinion Archer, J. prob- backlog.1 the to correct In order 7,000-case find- that recommended

lem, Professor St. Antoine hearing ings be deemed referees the of fact competent, "supported by material, if conclusive record” on whole evidence and substantial prepare required hearing referees be that written findings of law.2 conclusions of fact and acknowledged expressed St. Antoine Professor hearing were defi- referees some concern impartiality judgment. objectivity in cient of bias concluded, however, the claims He urge exaggerated.3 nevertheless, did, He were Legislature Service Commission or the Civil Advisory bipartisan Com- Qualifications establish a mittee to didates for the ratings prospective can- evaluate interview and position referee, with confidentially to be transmitted appointing authority.4 report, receipt

Upon Antoine’s of Professor St. a series of introduced the House and Senate both bills and amendments reform to effectuate system. compensation A confеrence com workers’ ultimately members and Senate mittee of House compromise in the that resulted toward a worked position 1985 PA 103. The enactment of Magis § in 206. A Board was abolished referee trates, excepted service, established from civil was § 213 to 4 of 1985 PA 103 tied 213.5 Section Costs, Antoine, Michigan: compensation bene- St. Workers’ See fairness, pp 67-69. ñts and Antoine, supra, p 71. See St. id., p See 72. id., p 75. See 5 "(1) magistrates compensation is established board of The worker’s department entity shall of labor. as an autonomous consist of 30 members consent of the senate. governor appointed by advice and with the governor appoint initial members shall designate 1 of 1986 and shall of the board not later than March chairperson. person A appointees as the member that will be appointed recommended to the board who has been shall not be CSC of Labor 637 Dissenting Opinion by Archer, J. many other sections law, of the so that if this Court found 213 to be unconstitutional then most changes compensation of the in the workers’ law by qualifications advisory committee. All members of the board good standing shall Michigan. be members in of the state bar of "(2) appointed The members of the board shall be for terms of 4 years except appointed, members first 10 shall serve for 2 years, years, 10 shall serve for years. and 10 shall serve for 4 A years member new term. A in serve reappointed who has served for 12 shall not be to a vacancy by expiration caused of a term shall be filled original appointment. the same manner as the A member shall not beyond expiration qualifica- of his or her term unless the advisory tions governor committee fails to submit a recommendation expiration before may of the term. A member reappointed. appointed vacancy A member to fill a created other than by expiration appointed of a term shall be for the balance of the unexpired may term. A member of the board be removed the to the governor good explained for writing cause which shall be compensation magistrate. worker’s include, Good cause for removal shall to, productivity neglect but not be limited lack of or other duties. "(3) governor may designate The a member of the board as the chairperson upon vacancy occurring position. chairper- in that The general son of charge ing productivity supervisory the board shall have control of and be in employees assignment of the of the board and the and schedul- chairperson of the may work of the board. The also establish by employees standards that are to be adhered to of the board, board, magistrates. and individual Each member of the board shall devote full time to the functions the board. Each personally perform member of the board shall the duties of the office during generally the hours employees worked officers and departments executive of the state. "(4) chairperson The chairperson of the board shall serve as at the pleasure governor. "(5) Each member of the salary board shall receive an annual necessary traveling shall be performance expenses entitled to incurred in the subjеct of official regu- duties to the standardized travel lations of the state. "(6) may employ The board necessary the staff it considers to be perform able to may its duties legal under this act which include purpose legal assistants for the assisting research and otherwise the board and individual members of the board. "(7) independent body The board is an powers with the and duties provided for under may promulgate this act. The rules on hearing procedures purposes administrative for under this act. "(8) chairperson may assign reassign The of the board worker’s compensation magistrates to hear cases at locations in this state. "(9) department provide space of labor shall suitable office compensation magistrates the board of employees worker’s and the added.) (Emphasis the board.” Mich Opinion Dissenting Archer, J. go into

would not effect. approved PA 103 on Governor Blanchard July 30, 1985. August plaintiff 8, Service Com- Civil

On Ingham complaint Circuit in the filed a mission Court, ruling seeking declaratory §§ 206 § 5. art in violation of Const 213 are sought injunctive relief. also commission August plaintiffs 16, 1985, referees On Ingham Court, in the Circuit a similar action filed ruling seeking declaratory §§206 and 213 a hearing referees also unconstitutional. are sought against to a defendants6 writ mandamus employment of the current them to continue direct Compensa hearing the referees Workers’ within and civil service. tion Bureau classified September 17, 1985, Blanchard Governor On Message this Court re- with filed an Executive questing Ingham Circuit be autho- that the Court question. controlling certify In lieu of to rized granting a request, directed the the Governor’s we Ingham accelerated to establish an Circuit Court discovery6 proceedings and to include schedule judgment case. trial, to final in this On issue a Ingham 2, 1985, December the Circuit Court issued judgment. a final Liquor holding

Relying on in Case v this Court’s hearing complaint, they original the filed their When referees of the defendants. Once named members Civil Service Commission as of the esc had the referees became aware fact that the filed 103, challenging they constitutionality PA its own lawsuit filed a motion of 1985 parties. "realignment” of the circuit court motion, granted individually and the named members esc dropped plaintiffs as in the as defendants and added action were brought by the referees. declaratory ruling, the circuit the court considered Prior to court’s by plaintiffs compel opposing discovery filed to defen motions protective plaintiffs’ motion for a order. The court denied dants granted sought defendants’ on the basis that the information motion plaintiffs’ was to claim under Const to be discovered not relevant 11, 5. art § CSC of Labor Archer, J. Dissenting Opinion (1946), Comm, 632; 23 314 Mich NW2d Control unconstitutional, §213 the circuit court declared stating: sought appear Legislature It does which, importance, is body

create a virtue of its deserving of name "board” and whose mem- ought excepted from the classi- bers therefor to be Rather, impression is unavoidable fied service. sought un- Legislature simply to create positions in of enhanced classified the interests attempted justify their accountability, and then by incorporat- exclusion from the classified service Apart this exclusion- ing them as a "board.” from magistrates ary purpose, incorporation appears play independent no mean- as a board ingful functioning in the of the worker’s role body compensation system. The board is not tool, importance merely It an dignity. purpose legitimize the artifice whose sole is to positions from the classified service. removal This is impermissible paragraph 1 of Article under para- purpose 5. In view of the historical § graph understanding common of those who Case, it, given it ratified and the construction it is clear that unconstitutional. 213 of the Act must be stricken appealed Appeals The defendants to the Court of 9, on December request 1985. The Governor then filed a asking certify with this Court that we the following question appeal for immediate here: 103, 213, Do 1985 PA which establishes § Compensation Magistrates

Worker’s Board of as entity independent body an autonomous Department and in the Labor, part legislation in- Legislature tended to ". . . increase the efficiency adjudicative pro- administrative of the compensation system; cesses of the worker’s having improve qualifications persons of the compen- adjudicative functions within the worker’s 640 424 Mich 571 Dissenting Opinion by Archer, J. system; prescribe sation powers certain duties; to create the compensa- board of worker’s magistrates .;

tion provide . . certain [and] procedures for the resolution of . . claims 103, 206, 1985 PA which abolishes as of March § 31, 1987 position the Legislatively created of Hear- Referee, ing occupied by personnel civil service Examiners, classified as Administrative Law vio- 11, late Michigan Article of the Constitution? § granted We leave for immediate on Decem- appeal 20, ber 1985.

II 103, Issue: Do 1985 PA §§ violate 5 OF § THE CIVIL SERVICE PROVISIONS IN ARTICLE Michigan Constitution? Defendants assert that because creates §213 Magistrates, Board of an and autono- independent exempt mous it is body importance dignity, from the classified civil under art 5 of service § Michigan Constitution. Plaintiffs, hand, argue on the other that § a true unconstitutional because it does not create in 213 creates a board They board. assert § only.8 question name We believe board’s is to be answered ana- constitutionality board, assessing and not lyzing the duties creating it. Legislature motives of paragraph perti- The first of art 5 reads part: nent service shall consist of The classified state civil except those filled positions

all in the state service Legislature plaintiffs faith in that the acted in bad also claim abolishing position Magistrates creating hearing the constitutional and in the Board of Additionally, Compensation Bureau. referee in the Workers’ and federal 1985 PA 103 violates state referees claim that provisions the civil service amendment. other than CSC v of Labor Dissenting Opinion Archer, J. election, by popular principal depart- heads of ments, commissions, members of boards or principal executive officer boards and commis- heading principal departments, sions employees of record, employees legislature, courts of em- ployees tion, higher of the state institutions of educa- state, persons in all the armed forces of the eight exempt positions nor, requested by empt positions, gover- in the office of the principal department, and within each when head, department two other ex- policy-mak- of which shall one ing. [Emphasis added.] Defendants on the rely quoted reference to the "boards or exemption commissions” from the clas- sified support argument civil service to their 213 does not violate art 5. §

Ill Background Historical A brief review of background the historical service amendment civil before necessary we determine challenged constitutionality section of 1985 PA 103. adoption Prior to the the civil service amendment people of Mich- igan, the state experienced had a longstanding "spoils of state system” personnel practices. In the Civil Service Commission Study was appointed by Governor Frank Fitzgerald D. study Michigan’s conduct a personnel practices. After conducting year-long study, com- study reported mission its findings and recommendations to the Governor. Michigan’s civil service system came being into as a result of the 1936 report the study commission.9 Legislature responded study the 1936 Litchfield, Michigan’s experience service, See with civil Person (No 4), 1939) (December, pp (publication

nel Administration 1-2 is now Review). Management called 424 Mich 571 Dissenting Opinion Archer, J. report by passing 1937 PA 34610which

commission system. act state civil service The established the purported "spoils system” and to to eliminate the public employ- system to the in contribute ment.11 This was merit part accomplished in at least par- prohibition through the act’s of civil servant ticipation political in activities and assessment during employment.12 Also, the hours of schemes required by exempted act boards and commissions appointed by from the the Governor law to be classified civil service. Michigan experienced 1939, almost com- an

In policy plete passage in civil service with reversal its PA 97, 1937 of 1939 PA which amended maintaining political activ- the ban on 346. While banning political ity by all activ- civil servants employment, during ity 1939 after hours of provi- a number of destructive PA 97 contained newly seriously created weakened the sions which system.13 service civil adopted Michigan people civil 1940, the

In which su- to the constitution amendment service perseded up a new commis- PA 346 and set 1937 provided system.14 The amendment sion all state part positions in the service were state positions,15 except specific listed civil service by the Governor. civil service boards 398; Governor members the service 10 11 "The state It should See Boards See Const legislature, 292 NW2d 442 except those filled Litchfield, Council No amendment of boards continued to be and commissions be noted that 1937 civil service shall art n 9 (1980), and commissions 6, 11, read supra, pp AFSCME higher 22, commissions, employees exempt in by popular for the effective pertinent part: required by educational 2-3. PA 346 consist of v Civil Service under 1939 pertinent provisions January required by law to be election, exempted law to be institutions all 1, PA 1941. heads of positions in the state Comm, of courts of 97, from appointed by § 7(l)(e). of the statute. 408 Mich recognized by departments, the classified appointed record, 385, Labor CSC Archer, J. Opinion Dissenting and commissions. including boards in 1963. constitution a new adopted people civil service revised art Const §5 strengthening 1940 by adopted amendment administrator and the executive role of chief control of legislative limited providing and by Also circumstances. specified under wage increases positions. exempt were additional provided IV

Analysis case, in this we presented Turning to issue understanding common must determine the as contained and "commissions” words "boards” 11, 5. art General, 384 Attorney Dist v School Traverse

In (1971), 9 we set 390, 405-406; 185 NW2d Mich of of a following three rules construction forth the 1) rule rule is the of primary constitution: employed; understanding” of words "common 2) em- meaning words clarify "to [of [the] surrounding the adop- ployed], circumstances provision purpose tion and the constitutional 3) considered”; sought to be accomplished may be that does not possible interpretation "wherever an is to one preferred create constitutional invalidity that does.” League Co v Co Taxpayers' Oakland Oakland

In Supervisors, 323; 355 Mich NW2d (1959), a test was whether formulated determine is a statute constitutional. held: We Court will not declare a statute unconsti- [T]his plain tutional unless it it some violates constitution, persons military the state the all in the naval forces state, positions exempt not exceed other for each elected officer, department, administrative and each board and commission.” 424 Mich Dissenting Opinion Archer, J. provisions of the Constitution and the constitution- ality presumptions supported possible of the act will all clearly not with the inconsistent language and the matter. subject Comm, See Liquor supra, also Case v Control 638. A "board” is as a commonly understood body composed person of more than one performs which its primary rather collectively functions than through individual members. People Maynard, (1867). 15 Mich 463 Maynard, In was issue whether legislation organizing township a new county was invalid because county included one only township. The Court held that the new act failed to create supervisors,” a viable "board of constitution, as required by the one super- because visor could act "board.” It stated that among the necessary incidents of a county are townships supervisors "whose conjointly exer- may cise the legislative powers and administrative added). Id., corporation.” 468 (emphasis county board of supervisors’ power could not be delegated person, to one because the board was designed act as an "aggregation town offi- Id., cers.” 472. Cooley concurrence,

In a separate Justice fur- ther upon elaborated attributes of a necessary supervisors”: "board of powers upon county conferred [the board] by the very importance, constitution high are legislative character, some of them ing in their requir- consultation, deliberation, discussion and and such conferred part political as in no our system of are upon single individuals. . . . term [TJhe "board,” in its derivation as well its ordinary as in use, indicates a body, composed deliberative of person. [Id.,

more than one Emphasis 473. added.] This common understanding of meaning the of CSC Labor of by Opinion Dissenting Akchek, J. Liquor exemplified again in Case v "board” pur- analyzed supra, term for Control, which exemption here. at issue poses service of the civil rely plaintiffs on this Court’s and Both defendants holding respective authority their for in Case as constitutionality concerning arguments of the § 213. an Case, considered whether Court

In this Liquor 1933,16 Act of Control to the amendment Hearing Examiners, Board of created a which violated The act amendment. the service civil hearing any provided or mem- examiners that "the hearings questions on conduct thereof shall ber (Ex Sess) by 1945 PA 1929 CL as amended PA § 16 1933 18.975(1), (1945 9209-20a; Supp) MSA read: hearing to consist of hereby a board of examiners "There is created governor, by appointed by and advice to the with the 3 members and consent the be Provided, senate, years of terms each: That of for of the appointed appointed for term of 2 be members first shall Any years years. term of years, 1 for a and 1 for a term of governor unexpired by in vacancy the term the shall be filled governor may of the board removed same manner. Members for the board be misfeasance, in office. Members malfeasance nonfeasance $6,000.00 compensation of shall annual and shall receive an necessary expenses perfor- to incurred in the be entitled actual and duties, paid manner salaries and mance of to be the same expenses examiners referred paid. officers Such other state are board any hearings questions or thereof member shall conduct on commission, to the under such rules and board may regulations as shall the commission establish. examiners report findings their decision. to commission for Each member examine oaths. the board is authorized The sion. witnesses administer general attorney assign 3 shall of his assistants the commis- suspended In all instances when commission shall cause a license is to be either complaint revoked to be ñled with said whereupon board facts sion as said board shall conduct a limited to the regulations liquor and law and rules and of the control commis- specified complaint. conducting hearings in said In the no hearsay testimony shall be admissible and the licensees named in the complaint right testify person shall have the witnesses have all hearing. findings upon at the board shall be based the facts regulations liquor the law and the rules and control requested may A commission. commission or specify statement of the facts either complaint licensee. The filed with the shall witnesses, alleged offense, the date of the names of the any added.) may hearing.” (Emphasis other facts that be in at the issue 424 Mich 571 Dissenting Opinion by Archer, J. by referred to the the "[i]n . . . board commission provided The act also all that instances when suspended a license is to either the be revoked complaint commission shall cause a to be filed whereupon with said board said board con- shall added.) hearing (Emphasis . duct a that Examiners did not violate . . We held creating Hearing the statute the Board of civil amend- the service stating: ment, legislature by 5a . . . a section created importance language of board and in that showed appointment employees that contemplated, assist the the of mere was not body an auxiliary but additional labeling a body mere of commission. insufficient, employees of as be a would but legislative by that was not the intent as seen the wording of the It act. was to a real bоard of independent referees which was to be of commission, findings the but its would not bind the commission. We believe that the creation of a body terized importance dignity, such and charac- by board, legislature matter as a as a expressly excepted fact created a board which is by the civil service amendment. Mich 641. [314 Emphasis added.] The statute construed in Case authorized the any hearings board or member thereof conduct questions on sion. referred to the board the commis- However, in instances where the commission complaint against filed licensee, a a the statute provided hearing. the board should hold a Individual members of the board were autho- hearings. rized to Hearing Hence, hold such Board required by Examiners was statute hearings complaints Liquor conduct on filed entity. Control Commission a collective In con- provisions trast, we note that none of the con- including require in 1985 § 213, tained Board body. PA Magistrates to function as a collective Dep’t op CSC v Labor Dissenting Opinion Archer, J. Napuche Liquor Comm, Relying Control on (1953), major- 398, 401; 336 Mich 58 NW2d practical ity construction of states that any presented member Case was statute complaint on board could conduct seeking suspension against or revoca- a a licensee language plain a The statute tion of license. any member in the board or Case indicates hearings questions to referred on could conduct the by statute, how- the board commission. hearings required on ever, complaints the to conduct liquor suspend a license revoke or to by commission. no There was were filed the which provision authorizing any the of member of Board hearing Hearing plaints a com- to conduct on Examiners by can be distin- filed the commission. Case guished Napuche the Court was from because Case challenged deciding constitutionality of the the problem this with in act, are confronted the we Napuche Court, however, con- was not case. The fronted with the

constitutionality the of statute Hearing Examin- of which established the Board Napuche question presented in Instead, ers. pro- plaintiffs afforded due whether the were was Liquor did Control Commission cess when hearing, on the testi- its own but relied conduct mony by hearing hear- at conducted received plaintiffs ing The Court concluded examiner. process rights plain- their due because did receive opportunity at were afforded an to heard tiffs by examiner conducted Liquor to had access and the Control Commission transcript. interpretation A rule of constitutional second requires rounding sur- an examination of the circumstances adoption provision. A of a review Michigan all and commissions existence boards during the service amendment time the civil 424 Mich 571 Dissenting Opinion Archer, J. adopted people,17

was indicates that perform required at boards or commissions were primary least some of their functions as a collec- body. tive examples

We summarize some of the duties and characteristics of state boards and commissions as they existed in 1940. Unemployment Compensation Commission

was created statute18 1936 and consisted of appointed by four members advice and consent of the Senate. Three members with the the Governor quorum constituted a for the transaction of com- mission business. The authorized commission was prescribe organization proce- its methods responsible developing dure. It was rules regulations encourage unemployment, to reduce adoption practical in the assist methods training, retraining, vocational guidance and vocational during depres- for use times business promote unemployment, sion and and to the reem- ployment throughout of workers the state. Hear- ings concerning policies regula- the or rules and tions of the be commission were to held before an appeal tribunal or the commission. Individual of members the commission were authorized to subpoenas persons required issue to who were to appear duly before the or commission its autho- agent regarding any rized to be examined matter scope inquiry investigation being within the of or by the conducted commission. The commission was required regulations providing to establish for the claims, examination of the of determination their validity, and the amount and duration of benefits paid. Unemployment compensation to be claims representatives by designated were to be examined by representatives the commission. These made Michigan Manual, pp See 1939-40 664-682. (Ex Sess) PA 1. CSC Labor of Opinion by Dissenting Archer, J. appealable to a fact which were determinations of by employed Referee deci- the commission. referee of commission unless were decisions the sions final Compensa- appealed Unemployment timely to Appeal Board, The below. commis- tion discussed employed independent and its own staff. sion was body policy-making was also a The commission required its to transact was statute which quorum through three of members. a business part carry required at Hence, it to out least was collectively. decisionmaking functions its Compensation Unemployment A three-member provided Appeal en- in a statute19 Board was created to the statute which acted amend Compensation Unemployment Commission. required appeal be that the board members statute appointed with advice the Governor appeal board on its own consent the Senate. modify, affirm, set to or motion was authorized any on the evidence of a referee aside decision taking referee, to direct the or submitted permit parties any evidence, to or additional appeal appeals it. The board initiate further before empowered was to remove to itself transfer proceedings pend- any claim another referee ing Any proceedings a so removed before referee. appeal quorum to the board had to heard be any provided board. While statute appeal member of the was authorized depositions, oaths, administer enforce decision had to take issue persons subpoenas, appealing referee appear before the board and appeal independent examined. The board was required by make as a board to was statute act any modify, affirm, own to or set aside its motion of a decision referee. (Ex Sess) 347, amending 1.

19 1937PA 1936 PA 424 Mich 571 by Dissenting Opinion Archеr, J. Board, The Labor created statute20 Mediation by of three members appointed by consisted the Governor and with advice consent Senate. The provided statute two members quorum, constituted "official . . . but orders require[d] concurrence of a of the board.” majority The board independent responsible was mediating disputes organized labor between em Michigan. board, The ployees employers person each member and each had designated power hearings, hold public private sub poena witnesses, Yet, and administer oaths. official required orders the board by concurrence at least two of the three members of the board. Liquor

The Control Commission was created by statute21 in 1933 and consisted of five members. Three of the appointed by members were Governor with the advice and consent of the Sen- ate. The Governor and the Secretary State served as ex-officio members the commission. commission, members, and not individual was authorized policies statute establish concern- ing the sale and distribution beverages of alcoholic in Michigan. empowered The commission was also or suspend liquor issue revoke licenses. The policies established the commission included fixing of prices of beverages alcoholic to be sold distributors, by specially designated uni- form pricing of alcohol to be sold by liquor state stores. The commission designated also hours within which liquor could be sold. The policy-mak- ing functions of Liquor Control Commission were carried out through collective decisionmak- ing. State Hospital Commission was created PA 176. (Ex Sess) PA 8. Labor CSC by Dissenting Opinion Archer, J. of seven members in 1937 and consisted

statute22 advice and Governor with the appointed by re- commission was of the Senate. The consent per meetings year. than ten to not less quired hold institu- the state mental jurisdiction It had over commission, The and hospital tions. entire members, making for responsible was individual care, treat- concerning the "methods policies feeble-minded- ment, insanity, and prevention ness, responsible for It was also epilepsy.” and program. hygiene a statewide mental developing its func- policy-making carried out The commission decisionmaking. through tions collective Aeronautics, statute23 in by created Board of ap- to be of five members composed was and with the advice the Governor pointed by Com- Highway The State consent of the Senate. cooperate to directed and authorized missioner was Board of Aeronautics was with the board. The all and control over general supervision given for commercial used airports landing and fields and all municipal airports, and all state purposes, empowered It specifically of aviation. was schools com- regulations governing develop rules and airports mercial and the curriculum re- Additionally, the board schools of aviation. operate air- applications approved viewed fields, of aviation. landing and schools ports, did not creating the Board of Aeronautics statute of the board authorize individual members regula- concerning rules make decisions to the board. applications tions оr on submitted Control, created the Athletic Board of Finally, in 1939 of five members. statute24 consisted by the Governor appointed by members were Four PA 22 1937 104. 231929 PA 177. PA 205. 424 Mich Dissenting Opinion Archer, J.

with the advice and consent Senate. The board was headed the State Commis- Athletic jurisdiction sioner. The had sole over all boxing sparring wrestling matches, contests, exhibitions held the state. The board collec- tively concerning made decisions the issuance and Rulings revocation licenses. of the commissioner governing on matters not covered the act only Athletic Board of Control were to be final regular meeting until the next of the entire board. Special meetings of the entire board could be requested by any party aggrieved by ruling a of the commissioner.

Our of review the above boards and commissions they independent they indicates that were responsible making policies, or, were for as in the settling Board, case of the Labor Mediation dis putes respective in their At areas. least some of the members on of each these bodies had appointed by the Governor. We believe that these through primary boards out carried their functions decisionmaking. collective of None the statutes creating these boards and commissions authorized carry individual out members all of the board’s primary or commission’s functions.25 majority The states at that the time the civil service amendment adopted was there were at least two of commissions which consisted only person. Racing Racing one Commission consisted of the empowered employees purposes Commissioner who was to hire for of racing Racing the commission act. The Commissioner also was em powered to fix employ and determine the salaries commission’s Corporation ees. The and Securities Commission the consisted of Corporation appoint Commissioner, empowered and Securities who was deputy Racing three subordinate commissioners. The Commis Corporation sioner ment depart and the and Securities Commissioner were majority mistakenly heads. We believe that the concludes that one when these two commissioners acted as a the commission department exempted commissioners were mere service heads from the civil department exception. under amendment head Further, Michigan Racing the 1939 Manual listed the Commis- Corporation page sioner and the under and Securities Commissioner on Governor, appointed by approval "Officers with the CSC of Labor Dissenting Opinion Archer, J. people, adopting the We that in conclude commonly under- civil service amendment to mean or commissions” stood the words "boards primary body or some of its which carried out all entity. not believe We do functions as a collective understanding these two common people adopted changed when the Const words 11, § art 5. declaring that, "[t]he classified We note positions in consist of all state civil service shall 11, § .,” . . numerical art with state service principal excepts specificity, the covered de- from only depart- partments government of state posi- no more than five additional ment head and leaves within classified tions. That servicе employees, 57,000 executive branch state some including professionals, spectrum divi- wide directors, chiefs, institutional sion bureau high ranking police many officials, of whom are responsible supervision of thousands expenditure employees millions of dol- and the public lars of funds. closely guarded expression numeri- of such operating departments exceptions of within the

cal government, leaving the within classified state high importance, positions leads to of us service not, in the would believe that amendment drafters exempting turn, their work boards undo uniquely they unless were different commissions government. from of state Our other functions in extant review of the boards and commissions distinguishing clearly charac- 1940 reveals those department but in that all heads none Senate.” Included list were Beginning page is on there Racing a list the boards and commissions. Commissions,” among the Commis- "State Boards and which Interestingly enough, was there included was not included. sioner under that heading Michigan Corporation Securities Commis- a comprised of five members. sion 571 Mich Dissenting Opinion Archer, J. teristics which we feel motivated the boards exception. commissions agree majority independence the We with that autonomy characteristics; or one is of those how- agree ever, we cannot with their dismissal requirement, collective deliberation which was so common to boards and commissions and represents understanding, which the most common literally historically, of the words "boards and commissions.” discussion,

theOn basis of the above we would following hold that three criteria should be determining validly in used a whether statute exempt creates civil board service or commission Michigan under the Constitution. Members appointed by or board commission should be Legislature. Governor or the The members of required by per- these bodies should be statute decisionmaking primary form some of their func- collectively tions an either as entire board or through panels commission or of the bodies. The independent board or commission should also be principal responsibility the exercise of its and have policy-making adjudicative either or an role.

Conclusion Magis would We hold that because Board required carry § trates created under not is any primary out of its functions as a collective entity, purposes not a true board for exception of the "boards” and "commissions” We, therefore, the civil service amendment. would ‍‌​‌‌​‌​‌​​‌​​​‌‌‌‌​‌​​​‌​‌‌‌​​​​​​‌​​‌‌​​​​‌​‌‌‌‍§ declare 213 violates art 5.26 opinion We note that Justice Levin states in his the Work Compensation Appeal longer ers’ a collective in Board no carries out its functions as body entity. holding Our this case would result making existing Compensation Appeal Workers’ Board uncon- of Labor CSC v Dissenting Opinion Aecheb, J. automatically in case would decision this Our position the current § render which abolishes hearing referee, contained and all other sections § 213 from 103 which are nonseverable 1985 PA inoperative. unnecessary holding it to ad- make would

Our plaintiffs remaining issues raised dress the they challenge all amici curiae because various constitutionality § 206. Brickley Riley, with JJ., concurred Archer, J. above, 11, 5. we noted a board As under Const art

stitutional which sits functions is adjudicative panels discharge its administrative not unconstitutional.

Case Details

Case Name: Civil Service Commission v. Department of Labor

Court Name: Michigan Supreme Court

Date Published: Mar 28, 1986

Citation: 384 N.W.2d 728

Docket Number: 77816, (Calendar No. 21)

Court Abbreviation: Mich.