487 Mich. 349 | Mich. | 2010
Lead Opinion
The issue in this case is whether teachers have standing to sue the school board for failing to comply with its statutory duty to expel students who have allegedly physically assaulted those teachers. We hold that the standing doctrine adopted in Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001), and extended in later cases, such as Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004), lacks a basis in the Michigan Constitution and is inconsistent with Michigan’s historical approach to standing. Therefore, we overrule Lee and its progeny and hold that Michigan standing
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs are the Lansing School Education Association (LSEA), the Michigan and National Education Associations (MEA/NEA), and four teachers who are employed by defendants, the Lansing School District and the Lansing Board of Education. Each of the four teachers alleges that they were physically assaulted in the classroom by a student who was in grade six or higher, and each of the incidents was reported to a school administrator.
Plaintiffs filed suit, alleging that defendants failed to comply with their mandatory duty under MCL 380.1311a(l) to expel students who physically assault a
Defendants moved for summary disposition, arguing that plaintiffs lack standing, the statute does not create a private cause of action, and plaintiffs’ claims fail as a matter of law because the school district did not abuse its discretionary authority in determining that none of the students had committed an “assault.” .The trial court granted the motion, reasoning that the court lacked the authority to supervise the school district’s exercise of its discretion.
Plaintiffs appealed, and the Court of Appeals affirmed the trial court’s grant of summary disposition on different grounds. Lansing Sch Ed Ass’n, MEA/NEA v Lansing Bd of Ed, 282 Mich App 165; 772 NW2d 784 (2009). The Court concluded that plaintiffs lacked standing under Lee and did not reach the case’s merits. This Court granted plaintiffs’ application for leave to appeal. 485 Mich 966 (2009).
II. ANALYSIS
The issue in this case is whether the Lee/Cleveland Cliffs majority erred in adopting a standing doctrine
A. THE HISTORICAL DEVELOPMENT OF MICHIGAN’S STANDING DOCTRINE
The purpose of the standing doctrine is to assess whether a litigant’s interest in the issue is sufficient to “ensure sincere and vigorous advocacy.” Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 633; 537 NW2d 436 (1995). Thus, the standing inquiry focuses on whether a litigant “is a proper party to request adjudication of a particular issue and not whether the issue itself is justiciable.” Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993) (quotation marks and citations omitted). This doctrine has deep roots in Michigan law, and, although it has been used with increasing frequency in modern jurisprudence, before Lee it remained a limited, prudential doctrine.
Historically, the standing doctrine grew out of cases where parties were seeking writs of mandamus to compel a public officer to perform a statutory duty. See, e.g., People ex rel Ayres v Bd of State Auditors, 42 Mich 422, 429-430; 4 NW 274 (1880); People ex rel Drake v Univ of Mich Regents, 4 Mich 98, 101-102 (1856). Standing was a prudential limit, which is to say that the court’s decision to invoke it was “one of discretion and not of law.” Ayres, 42 Mich at 429. See, also, Toan v McGinn, 271 Mich 28, 33-34; 260 NW 108 (1935); Thompson v Secretary of State, 192 Mich 512, 522; 159 NW 65 (1916); Drake, 4 Mich at 103. The general rule was that a court would not hear a case where “an individual citizen, who is only
This rule was eventually applied in other cases where a party sought enforcement of a public right without a clear cause of action under the law, including where a plaintiff was seeking an injunction against a state agency on the basis that the agency’s actions were unconstitutional. Home Tel Co v Michigan R Comm, 174 Mich 219, 223-226; 140 NW 496 (1913). See, also, Gilleland, 191 Mich at 278, listing remedies to which the rule had been extended. Notably, these cases only discussed the doctrine when no cause of action was clearly provided under law and the Court was deciding whether, within its discretion, to allow the party to bring the claim despite the lack of an express cause of action. Further, the standing inquiry was distinct from the merits of the case. Thus, although the Court sometimes reached the merits of a case despite concluding that a party lacked standing, the Court did not find it necessary to determine whether a party’s claim had merit in order to determine whether a party had standing.
References to standing became more frequent in Michigan’s modern jurisprudence, and the doctrine was developed more extensively but remained a prudential
While the doctrine continued to serve the purpose of ensuring “sincere and vigorous advocacy” by litigants, over time the test for satisfying this requirement was further developed. In cases involving public rights, the Court held that a litigant established standing by demonstrating a “substantial interest [that] will be detrimentally affected in a manner different from the citizenry at large.” House Speaker, 443 Mich at 572 (quotation marks and citations omitted). Additionally, however, the Court recognized that even if a statute did not expressly grant standing, it could be implied from duties created by law. See Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728, 741; 322 NW2d 152 (1982) (stating that there were cases in which “standing was not expressly granted by statute [but] standing was implied by the duties and obligations that were expressly stated)”. Thus, where a statute did not expressly grant standing, this Court would consider whether the Legislature nonetheless intended to confer standing on the plaintiffs.
In summary, standing historically developed in Michigan as a limited, prudential doctrine that was intended to “ensure sincere and vigorous advocacy” by litigants. If a party had a cause of action under law, then standing was not an issue. But where a cause of action was not provided at law, the Court, in its discretion, would consider whether a litigant had standing based on a special injury or right or substantial interest that would be detrimentally affected in a manner different from the citizenry at large, or because, in the context of a statutory scheme, the Legislature had intended to confer standing on the litigant. It was not necessary to address the merits of the case in order to address standing.
B. THE LEE/CLEVELAND CLIFFS STANDING DOCTRINE
Despite the consistency of the historical development of the standing doctrine in Michigan, Lee and its progeny abruptly departed from precedent and radically changed the standing doctrine. This doctrine’s flaws are many.
1. OVERVIEW OF THE LEE/CLEVELAND CLIFFS MAJORITY’S APPROACH TO STANDING
In Lee, a majority of the Court determined, for the first time in Michigan jurisprudence, that standing was required by the Michigan Constitution, and, further, that
2. CRITICISMS OF THE LEE/CLEVELAND CLIFFS MAJORITY’S APPROACH TO STANDING
The flaws in the Lee/Cleveland Cliffs approach are many.
To begin with, there is no textual basis in the Michigan Constitution for concluding that standing is constitutionally required, and there are important differences between the two constitutions. The Michigan Constitution provides for the separation of powers between the legislative, judicial, and executive branches and vests the courts with the judicial power. Const 1963, art 3, § 2; art 6, § 1. The federal constitution similarly vests the judicial power in the courts. US Const, art III, § 1. Unlike the Michigan Constitution, however, the federal constitution enumerates the cases and controversies to which the judicial power extends, and the federal standing doctrine is largely derived from this Article III case-or-controversy requirement. See Lujan, 504 US at 560 (stating that “the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III)”. Additionally, strictly interpreting the judicial power of Michigan courts to be identical to the federal courts’ judicial power does not reflect the broader power held by state courts. Whereas federal courts only have the powers enumerated in the United States Constitution, the states retain powers not ceded to the federal government. US Const, Am X. See also Cleveland Cliffs, 471 Mich at 683-684 (KELLY, J, concurring). As this Court has stated, in Michigan, “[w]hile the legislature obtains legislative power and the courts receive judicial power by grant in the State Constitution, the whole of such power reposing in the sovereignty is granted to those bodies except as it may
The Cleveland Cliffs majority dismissed the lack of a textual case-or-controversy requirement in the Michigan Constitution as irrelevant because it held that the case- or-controversy requirement is a limitation inherent in the judicial power.
Indeed, the Lee/Cleveland Cliffs majority, and the dissent in this case, make unsupported logical, or, rather, illogical, leaps. They expend significant energy explaining that Michigan law has historically required a case or a controversy to invoke the judicial power. See, e.g., Cleveland Cliffs, 471 Mich at 626-628. Then, citing only cases that stand for that limited proposition, and without distinguishing or overruling the volume of precedent discussed in this opinion, they conclude that simply because this Court has stated that the judicial
C. STARE DECISIS
In light of the fact that the Michigan Constitution’s reference to the judicial power does not inherently incorporate the federal case-or-controversy requirement, and, in fact, importing this requirement is inconsistent with this Court’s historical view of its own powers and the scope of the standing doctrine, the question arises as to whether this Court should continue to apply the Lee/Cleveland Cliffs doctrine. Under the longstanding doctrine of stare decisis, “principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” Brown v Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996) (quotation marks and citations omitted). The importance of the stare decisis doctrine is well established, for, as Alexander Hamilton stated, to “ ‘avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them ....’” Petersen v Magna Corp, 484 Mich 300, 314-315; 773 NW2d 564 (2009) (opinion by Kelly,
Despite its importance, stare decisis is neither an “inexorable command,” Lawrence v Texas, 539 US 558, 577; 123 S Ct 2472; 156 L Ed 2d 508 (2003), nor “a mechanical formula of adherence to the latest decision,” Helvering v Hallock, 309 US 106, 119; 60 S Ct 444; 84 L Ed 604 (1940). Ultimately, it “attempts to balance two competing considerations: the need of the community for stability in legal rules and decisions and the need of courts to correct past errors.” Petersen, 484 Mich at 314 (opinion by Kelly, C.J.). To reflect this balance, while there is a presumption in favor of upholding precedent, this presumption may be rebutted if there is a special or compelling justification to overturn precedent. Id. at 319-320. In determining whether a special or compelling justification exists, a number of evaluative criteria may be relevant, id.,
To begin with, a case may be given less deference when it was an abrupt departure from longstanding precedent and lacks a constitutional basis. Adarand Constructors, Inc v Peña, 515 US 200, 231-234; 115 S Ct 2097; 132 L Ed 2d 158 (1995). In such cases, “[b]y refusing to follow [the erroneous precedent], then, we do not depart from the fabric of the law; we restore it.”
Further, regardless of the level of deference due Lee and Cleveland Cliffs, there is a compelling justification to overrule the standing doctrine adopted in those cases. I find several evaluative criteria to be relevant, including: (1) “whether the rule has proven to be intolerable because it defies practical workability”; (2) “whether reliance on the rule is such that overruling it would cause a special hardship and inequity”; (3) “whether upholding the rule is likely to result in serious detriment prejudicial to public interests”; and (4) “whether the prior decision was an abrupt and largely unexplained departure from precedent.” Petersen, 484 Mich at 320.
The second criterion, the strength of reliance on the rule, weighs in favor of overruling Lee and Cleveland Cliffs because it seems unlikely that potential future defendants, including the government, have been violating laws on the basis of the assumption it could not be challenged because no party would have standing under Lee to do so. To the extent that such interests exist, they are not the type of reliance interests that this Court seeks to protect.
The third criterion weighs heavily in favor of overruling Lee because the doctrine is likely to result in serious detriment to the public interest. The purpose of the standing doctrine in Michigan has always been to “ensure sincere and vigorous advocacy.” But the LeefCleveland Cliffs standing doctrine is, at the expense of the public interest, broader than this purpose because it may prevent litigants from enforcing public rights, despite the presence of adverse interests and parties, and regardless of whether the Legislature intended a private right of enforcement to be part of the statute’s enforcement scheme. As noted by Chief Justice Kelly’s Cleveland Cliffs concurrence, the Lee/Cleveland Cliffs standing doctrine “creates a self-inflicted wound” that prevents the Court from serving justice and protecting the public interest. Cleveland Cliffs, 471 Mich at 689. Further, as many commentators have noted, the federal standing doctrine has the effect
Finally, the fourth criterion weighs heavily in favor of overruling precedent because, as discussed above, by adopting the Lujan test as a constitutionally required standing doctrine, the majority casually displaced decades of inconsistent precedent without notice or adequate explanation and thus implemented an abrupt and insufficiently explained departure from precedent.
In light of these considerations, we hold that Lee and its progeny should be overruled.
1. OVERVIEW OF THE PROPER APPROACH TO STANDING
The question then becomes what standing doctrine this Court should adopt in lieu of Lee/Cleveland Cliffs. We hold that Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan’s longstanding historical approach to standing.
The next question is whether, in this case, plaintiffs have standing. Plaintiffs seek a declaratory judgment, a writ of mandamus, and injunctive relief.
To begin with, under the proper approach to standing, plaintiffs may seek a declaratory judgment if the requirements in MCR 2.605 are met. We remand to the Court of Appeals to decide whether plaintiffs meet the requirements of MCR 2.605 because it did not previously address this issue.
Further, we must decide whether plaintiffs have standing to pursue the rest of their claims because the Revised School Code, MCL 380.1 et seq., does not create an express cause of action or expressly confer standing on plaintiffs to enforce the act’s provisions.
Moreover, the legislative history to the 1999 legislative amendments that adopted MCL 380.1311a(l) into the Revised School Code make clear that the purpose of the section is to create a safer school environment and, even more specifically, a safer and more effective working environment for teachers.
In light of these purposes, and the plaintiff-teachers’ affidavits, it is even more clear that teachers have a substantial interest in the enforcement of MCL 380.1311a(l) that is distinct from that of the general public. The legislative history specifically contemplates that the statute is intended to not only make the general school environment safer but additionally to specifically protect teachers from assault and to assist them in more effectively performing their jobs. These are hardly interests that are shared by the general public.
We agree that, as stated by the dissent, the issue in this case is whether “a teacher [can] sue a school board for its failure to expel a student who allegedly assaulted
III. CONCLUSION
We overrule the standing test adopted in Lee and its progeny and restore Michigan standing jurisprudence to be consistent with the doctrine’s longstanding, prudential roots. We reverse the Court of Appeals judgment and remand to that Court to determine whether plaintiffs meet the requirements of MCR 2.605. Further, because we hold that plaintiffs have standing to pursue their remaining claims, we also remand to the Court of Appeals for consideration of the issues that it did not previously reach.
Cathy Stachwick alleges that a seventh grader threw a leather wristband with metal spikes towards her back, and the wristband bounced off the blackboard and struck her in the head. Penny Filonczuk and Ellen Wheeler allege that students in sixth grade or higher intentionally threw chairs at them. Elizabeth Namie alleges that a student in grade six or higher intentionally slapped her back.
MCL 380.1311a(l) provides in relevant part that “[i]f a pupil enrolled in grade 6 or above commits a physical assault at school against a person employed by or engaged as a volunteer or contractor by the school board,” and the assault is reported to the school, then the school board “shall expel the pupil from the school district permanently .. . .”
See Detroit City Council v Detroit Mayor, 449 Mich 670, 679 n 10; 537 NW2d 177 (1995) (stating that the Court was not reaching the standing issue because the parties did not raise or brief it); People v Kevorkian, 447 Mich 436, 447 n 1; 527 NW2d 714 (1994) (opinion by Cavanagh, C.J., and Brickley and Griffin, JJ.) (noting that it was not addressing standing because the parties had not raised it); Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 371-372; 505 NW2d 820 (1993) (noting that federal courts had split on whether subrogees had standing to sue under a federal act but the Court would permit a subrogee to sue “as a matter of public policy”); Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 103 n 6; 367 NW2d 1 (1985) (opinion by Levin, J.) (deciding to give a decision on the merits regardless of whether the plaintiff had standing because “this litigation has been pending for a number of years and the Legislature and the people need a decision”).
See, generally, Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 45; 576 NW2d 641 (1998) (Cavanagh, J., dissenting) (discussing the historical importance and validity of the Michigan environmental protection act’s citizen-standing provision); see, also, Walterhouse v Ackley, 459 Mich 924 (1998); Frame v Nehls, 452 Mich 171, 177-178; 550 NW2d 739 (1996).
Although the Court splintered on how to articulate when standing could be implied from a statutory scheme that does not expressly grant standing in the last major pre-Lee case addressing this issue, Detroit Fire Fighters Ass’n, Justice Weaver’s lead opinion articulated general principles consistent with the historical approach. Detroit Fire Fighters Ass ’n, 449 Mich at 633. Further, Justice Mallett’s statement that the key issue is “whether the plaintiff can demonstrate any special right, injury, or zone of interest that deserves the protections of the law,” is consistent with the historical doctrine. Id. at 663 (Mallett, J., concurring in the result only). Justice Riley’s concurrence, however, erred in conflating the distinct inquiries of whether a plaintiff has standing under a statutory scheme and whether there is an implied statutory cause of action. Id. at 644-645.
Lee cited older Michigan caselaw to define the judicial power as “the power to hear and determine controversies between adverse parties, and questions in litigation,” and “the authority to hear and decide controversies, and to make binding orders and judgments respecting them.” Lee, 464 Mich at 738, quoting Daniels v People, 6 Mich 381, 388 (1859), and Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884) (emphasis omitted). The Cleveland Cliffs majority, however, only cited federal caselaw in support of its contention that “[pjerhaps the most critical element of the ‘judicial power’ has been its requirement of a genuine case or controversy between the parties . . . .” Cleveland Cliffs, 471 Mich at 615.
The test requires that the plaintiff show (1) an injury-in-fact, meaning the “invasion of a legally protected interest which is (a) concrete and
Only the fundamental legal error most relevant to the stare decisis analysis will be reviewed because other criticisms have been thoroughly addressed in various opinions of this Court. For further discussion, however, see, e.g., Cleveland Cliffs, 471 Mich at 651-675, (Weaver, J., concurring); Mich Citizens for Water Conservation, 479 Mich at 310-322 (Weaver, J., dissenting).
As noted in Justice Weaver’s Cleveland Cliffs concurring opinion, and discussed in her concurrence in this case, adopting standing as a constitutional doctrine potentially may even violate the separation of powers doctrine under the Michigan Constitution. Cleveland Cliffs, 471 Mich at 668-669.
The Cleveland Cliffs majority dismissed the cases-or-controversies requirements in art III, § 2 of the federal constitution as merely explaining the types of cases and controversies over which the Court had jurisdiction, rather than as the source of the case-or-controversy requirement itself, which it considered to be inherent in the grant of judicial power in art III, § 1. 471 Mich at 626-627.
As the dissent notes, some of our sister states have chosen to adopt a standing doctrine similar to the Lujan test. But, of course, other states’
The dissent offers quotations from delegates to the Michigan Constitutional Convention to support its position that the judicial power extends only to cases or controversies. Even setting aside whether there is a truly logical distinction between the dissent’s criticisms of the use of
In Petersen, Chief Justice Kelly provided a nonexhaustive list of criteria that may be considered, but none of the criteria are determinative, and they need only be evaluated if relevant. See Petersen, 484 Mich at 320.
In addition to firing its standard shot impugning my commitment to the doctrine of stare decisis, today the dissent also claims that the justices of this Court must adopt a uniform approach to stare decisis and criticizes me for applying a “minority” approach rather than Robinson v Detroit, 462 Mich 439, 464-466; 613 NW2d 307 (2000). As discussed in
Ironically, the very doctrine and approach that the dissent claims to vehemently adhere to today was not so faithfully applied by the members of the dissent in the past. Indeed, the members of the dissent have overruled caselaw without even paying lip service to Robinson, see, e.g., People v Anstey, 476 Mich 436; 719 NW2d 579 (2006), or after engaging in a cursory, or limited, analysis of the factors that they claim fidelity to today, see, e.g., Wesche v Mecosta Co Rd Comm, 480 Mich 75, 91 n 13; 746 NW2d 847 (2008); Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 297 n 10; 731 NW2d 29 (2007); Neal v Wilkes, 470 Mich 661, 667 n 8; 685 NW2d 648 (2004); People v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267 (2004); Mack v Detroit, 467 Mich 186, 203 n 19; 649 NW2d 47 (2002).
Contrary to the mewling of the dissenters, who would enshrine their disembowelment of 10 to 50 years of this Court’s jurisprudence, in Lee and many other cases, this majority’s reversal of their recent activist efforts simply brings this Court back to the status quo ante. Indeed, the dissenters’ stare decisis protestations should taste like ashes in their mouths. Although the dissenters paid absolutely no heed to stare decisis as they denigrated the wisdom of innumerable predecessors, the dissenters would now wrap themselves in its benefits to save their recent precedent.
The other criteria suggested by Chief Justice Kelly in Petersen are not applicable to this case or are neutral. For example, perhaps because the case was recently decided, there are no related principles of law that have eroded the rule and there are no significant changed facts or circumstances. Further, as noted, the jurisprudence from other states
See, e.g., Allen v Wright, 468 US 737, 782; 104 S Ct 3315; 82 L Ed 2d 556 (1984) (Brennan, J., dissenting), quoting numerous academic commentaries to explain that “[m]ore than one commentator has noted that the causation component of the Court’s standing inquiry is no more than a poor disguise for the Court’s view of the merits of the underlying claims.” Indeed, there is perhaps no better example of this than the dissenting opinion in this case, which, in order to apply the Lee standing test, also voluminously addressed the merits of each of plaintiffs’ claims and the availability of the remedies they sought.
The cases extending or applying Lee and Cleveland Cliffs include: Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007); Mich Citizens for Water Conservation; and Mich Chiropractic Council v Comm’r of the Office of Fin & Ins Servs, 475 Mich 363; 716 NW2d 561 (2006). Further, Associated Builders & Contractors, 472 Mich at 126-127, is
The dissent’s Chicken Little-esque wails of the impending stampede to the courthouse that will result from today’s decision ignore that we do nothing more than restore an approach to standing that is consistent with the approach that this Court followed for decades without courts being overburdened with a flood of litigation before Lee was decided a mere nine years ago.
The pre-Lee/Cleveland Cliffs standard, which was also incorporated into Associated Builders & Contractors, remains: “The essential requirement of the term ‘actual controversy’ under the rule is that plaintiffs ‘plead and prove facts which indicate an adverse interest necessitating the sharpening of the issues raised.’ ” Associated Builders & Contractors, 472 Mich at 126, quoting Shavers, 402 Mich at 589.
It is not disputed that, under Michigan law, an organization has standing to advocate for the interests of its members if the members themselves have a sufficient interest. See, e.g., Trout Unlimited, Muskegon-White River Chapter v White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992). Thus, because we hold that the plaintiff-teachers have standing, and it is not disputed that the plaintiff-teachers are members of the plaintiff-organizations, the plaintiff-organizations have standing as well.
In dicta, the Court of Appeals decision in this case suggested that there is no implied private cause of action to enforce the Revised School Code. We do not reach the merits of that issue, however, because plaintiffs are not seeking a private cause of action for damages. See, generally, Lash v Traverse City, 479 Mich 180, 196-197; 735 NW2d 628 (2007), explaining that a party may seek remedies other than monetary damages, such as declaratory relief under MCR 2.605(A)(1), against a governmental unit without having to demonstrate that a statute has an implied private right of action.
The dissent suggests that the same limitations that apply to using legislative history to interpret a statute should be applied to determining whether a party has a substantial and distinct interest in the statute’s enforcement that is sufficient to establish standing. We disagree. If the Legislature unambiguously expresses an intent to confer standing through a statute’s text, then it would certainly be sufficient to confer standing. But the inquiry into whether a party has a substantial and distinct interest in the enforcement of the statute is a much broader inquiry for which legislative history may he instructive. Indeed, before Lee, this Court would sometimes consider legislative history in determining whether a party had standing. See, e.g., Frame v Nehls, 452 Mich 171, 176-180; 550 NW2d 739 (1996); Girard, 437 Mich at 244-247. Further, while analyzing legislative intent is essential if a party is attempting to demonstrate that the Legislature intended to confer standing or create a private right that the party would have standing to enforce, this Court has not historically found an analysis of legislative intent necessary for a party to demonstrate that the party has a substantial interest in the
Indeed, because of this, plaintiffs’ claim to having a more substantial interest than that of the general public is greater than that of the plaintiff-firefighters in Detroit Fire Fighters Ass’n. In that case, Justice Weaver’s lead opinion explained that, in her view, firefighters did not have a substantial interest in the effects of reduced funding for the fire department that was sufficiently distinct from that of the general public because, although firefighters were subject to a greater risk of harm if the number of total firefighters was reduced, members of the public who were trapped in burning houses were also subject to a greater likelihood of injury, and, thus, “[b]oth segments of society are at greater risk when there is a dearth of fire fighters.” Detroit Fire Fighters Ass’n, 449 Mich at 638 (quotation marks and citation omitted). Other justices, including myself, would have concluded that the firefighters did have a sufficiently distinct interest to establish standing. But, regardless, it is apparent that plaintiffs’ interest in this case is even more distinct than that of the firefighters. As noted by the dissent, a teacher is more likely to be at a school, just as a firefighter is more likely to be at a fire. But whereas all members of the public are at risk of being in a building that may catch fire, all members of the public are not necessarily in schools so that they are at risk of being assaulted in a classroom or, even if they are in a school, of being affected by a less effective teaching environment.
As discussed, the merits of a party’s claims and their right to the requested remedies were frequently intertwined in the standing analysis erroneously adopted in Lee. Indeed, the dissent in this case perfectly models this troubling aspect of that decision. But, under the proper approach to standing, the issues of whether plaintiffs have sufficiently pleaded a cause of action and are entitled to the requested remedies are independent of the standing inquiry. Indeed, the issues the dissent raises regarding whether students’ rights would be violated if a court decided to review the school board’s disciplinary hearings and discretionary decision and found that plaintiffs were entitled to an injunction expelling the students are certainly premature at this point.
Just as the dissent’s cries that the historical standing test, in general, will lead to a stampede to the courthouse ignore that we are reversing a decision that is only nine years old, the dissent’s cries regarding the stampede of lawsuits that will result from this specific case ignore that the Revised School Code predated Lee and yet the courts were not overburdened with similar cases before Lee. The reason for this lack of lawsuits is self-evident, as standing is certainly not the only hurdle to prevailing in a case, including winning on the merits. As noted, we are not holding that there is an implied cause of action for private damages under the Revised School Code. Thus, the plaintiff-teachers seeking enforcement of MCL 380.1311a(l) must meet the requirements for some other cause of action, such as a writ
Concurrence Opinion
(concurring). I concur in and sign all of the majority opinion except part 11(C), entitled “Stare Decisis.”
I write separately to expand on footnote 8 of the majority opinion by providing some of the additional criticisms of Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001), and its progeny mentioned in that footnote.
As I stated in my dissenting opinion in Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 311; 737 NW2d 447 (2007):
*379 Beginning with Lee v Macomb Co Bd of Comm’rs, the majority overruled Michigan precedent establishing prudential standing as the traditional doctrine of legal standing in Michigan. In place of Michigan’s doctrine of prudential standing, the majority erroneously adopted a constitutional doctrine of standing based on the federal courts’ doctrine of standing, as stated in Lujan v Defenders of Wildlife.[1]
I further stated:
Before Lee, no Michigan case had held that the issue of standing posed a constitutional issue.[2] Nor did any case hold that Michigan’s judicial branch was subject to the same case-or-controversy limitation imposed on the federal judicial branch under article III of the United States Constitution.[3] In fact, article III standing derived from Lujan was not even an issue raised or briefed by the parties in Lee. On its own initiative, the majority of four raised Lujan’s standing test and erroneously transformed standing in Michigan into a constitutional question. [Id. at 312-313.]
In Nat’l Wildlife [Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004)], the majority of four attacked [the Michigan Environmental Protection Act, MCL 324.1701 et seq. (MEPA)] by stating at length, all in dicta, that the Legislature cannot grant citizens standing. The majority based this argument on the premise that the Legislature would be taking away the power to enforce laws, an essential component of the “executive power,” and giving that power to the judicial branch. The majority proudly proclaimed that it was “resisting an expansion of power — not an everyday occurrence in the annals of modern government.”[4] Unfortunately, that statement was not accurate, because the majority showed its lack of judicial restraint by compromising the Legislature’s constitutional duty to enact laws for the protection of the environment and enlarging the Court’s capacity to overrule statutes under the guise of the majority’s self-initiated, erroneous “constitutional” doctrine of standing.[5] [Nestlé, 479 Mich at 315.]
As Justice CAVANAGH’s majority opinion in this case states at footnote 9, I described in Nat’l Wildlife how the Lee standing doctrine violated separation of powers under the Michigan Constitution. In Nat’l Wildlife, I stated:
*381 While pretending to limit its “judicial power,” the majority’s application of Lee’s judicial standing test in this case actually expands the power of the judiciary at the expense of the Legislature by undermining the Legislature’s constitutional authority to enact laws .... [Nat’l Wildlife, 471 Mich at 654 (Weaver, J., concurring).]
In expanding the judicial power by making standing a constitutional concern, the “majority of four” took
the area of legal standing out of the hands of the Legislature and the people and placed it exclusively at [the majority of four’s] mercy. To make standing a constitutional concern when our Michigan Constitution is completely silent regarding which of the government’s branches has power to grant standing represents judicial activism of the most objectionahle sort.” [Rohde v Ann Arbor Pub Sch, 479 Mich 336, 373; 737 NW2d 158 (2007).]
Lee and its progeny clearly defied common sense and fairness, as those cases ignored Michigan’s Constitution and imposed “unprecedented, judge-made restrictions on . . . access to the courts.” Nat’l Wildlife, 471 Mich at 654 (Weaver, J., concurring). The Lee standing doctrine represented an unprecedented and unrestrained expansion of judicial power that dishonored our Michigan Constitution and decimated the rule of law and therefore it must be reversed. Accordingly, for the reasons I have given over the last nine (9) years since Lee was decided and for the reasons in Justice CAVANAGH’s majority opinion in this case, I vote to overrule Lee and its progeny.
With regard to the policy of stare decisis, my view is that past precedent should generally be followed but that to serve the rule of law, in deciding whether wrongly decided precedent should be overruled, each case should be looked at individually on its facts and merits through the lens of judicial restraint, common sense, and fairness. I agree with the sentiment recently expressed by Chief
stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U. S. 558, 577 [123 S Ct 2472; 156 L Ed 2d 508] (2003), nor “a mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U. S. 106, 119 [60 S Ct 444; 84 L Ed 604] (1940).... If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. See Plessy v. Ferguson, 163 U. S. 537 [16 S Ct 1138; 41 L Ed 256] (1896), overruled by Brown v. Board of Education, 347 U. S. 483 [74 S Ct 686; 98 L Ed 873] (1954); Adkins v. Children’s Hospital of D. C., 261 U. S. 525 [43 S Ct 394; 67 L Ed 785] (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 [57 S Ct 578; 81 L Ed 703] (1937); Olmstead v. United States, 277 U. S. 438 [48 S Ct 564; 72 L Ed 944] (1928), overruled by Katz v. United States, 389 U. S. 347 [88 S Ct 507; 19 L Ed 2d 576] (1967).
Chief Justice Roberts further called stare decisis a “principle of policy” and said that it “is not an end in itself.” Id. at _; 130 S Ct at 920; 175 L Ed 2d at 807. He explained that “[i]ts greatest purpose is to serve a constitutional ideal — the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.” Id. at _; 130 S Ct at 921; 175 L Ed 2d at 807.
In serving the rule of law and applying judicial restraint, common sense, and a sense of fairness to the case at hand, I agree with and join the majority opinion’s holding that Lee and its progeny are overruled.
1 Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992).
2 Before Lee, the Michigan standing requirements were based on prudential, rather than constitutional, concerns. See, generally, House Speaker v State Admin Bd, 441 Mich 547, 559 n 20; 495 NW2d 539 (1993), and Justice Riley’s concurrence in Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 643; 537 NW2d 436 (1995).
3 As I wrote in my concurrence in Lee:
In House Speaker we stated that “this Court is not bound to follow federal cases regarding standing,” pointing out that “[o]ne notable distinction between federal and state standing analysis is the power of this Court to issue advisory opinions. Const 1963, art 3, § 8. Under Article III of the federal constitution, federal courts may issue opinions only where there is an actual case or controversy.” [House Speaker, 441 Mich at] 559, including n 20. Justice Kennedy, writing for the Court in ASARCO Inc v Kadish, 490 US 605, 617; 109 S Ct 2037; 104 L Ed 2d 696 (1989), acknowledged:
“We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not hound by the limitations of a case or controversy or other federal rules of justiciability . ...” [Lee, 464 Mich at 743 n 2.]
4 Nat’l Wildlife, 471 Mich at 639 (emphasis in original).
5 “[F]aux judicial restraint is judicial obfuscation.” Fed Election Comm v Wisconsin Right to Life, Inc, 551 US 449, 499 n 7; 127 S Ct 2652; 168 L Ed 2d 329 (2007) (Scalia, J., concurring in part and concurring in the judgment).
It appears that the dissent in this case does not agree with Chief Justice Roberts. The dissent refers to cases that have been overruled by this Court in the past 18 months. While the dissenting justices may feel aggrieved by this Court overruling those cases, amongst those cases were some of the most egregious examples of judicial activism that did great harm to the people of Michigan. Those decisions were made by the
Consequently, I want to focus my remarks here on the embarrassment that the common law presents — or ought to present — to a conscientious judicial traditionalist. . . .
To give a graphic illustration of my feelings on the subject, I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one’s genteel garden party. Grandpa’s presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa’s presence and condition, all concerned simply try ignore him. [Young, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 301-302 (2004).]
Over the past decade, the principal tool used by this Court to decide when a precedent should be overruled is the set of guidelines that was laid out in Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), an opinion written by former Justice TAYLOR, signed by Justices Corrigan, Young, and Markman and myself, and that I have used numerous times. By no means do I consider the Robinson guidelines a “be-all, end-all test” that constitutes precedent of this Court to be used whenever this Court considers overruling precedent. I view Robinson as merely providing guidelines to assist this Court in its legal analysis when pertinent.
Concurrence Opinion
(concurring). I fully concur with Justice CAVANAGH’s analysis and conclusion in this matter and I support overruling Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). Further, I agree with the additional criticisms of Lee articulated in Justice Weaver’s thoughtful concurrence. I write separately to express my thoughts on the doctrine of stare decisis.
Given the debate amongst the justices of this Court concerning what constitutes the proper stare decisis analysis, I find it insightful to review how our United States Supreme Court has treated the doctrine. Stare decisis is a principle of policy that commands judicial respect for a court’s earlier decisions and the rules of law that they embody. See Harris v United States, 536 US 545, 556-557; 122 S Ct 2406; 153 L Ed 2d 524 (2002); Helvering v Hallock, 309 US 106, 119; 60 S Ct 444; 84 L Ed 604 (1940). “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed 2d 720 (1991). However, when balancing the need to depart from precedent with the need to
I too believe that stare decisis is a principle of policy. As stated in Helvering:
We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.[1]
I do not agree with any approach to stare decisis that suggests or implies that it is a “rule” or “law” subject to
Historically, the United States Supreme Court has utilized many different approaches to stare decisis, including such approaches as those involving a “compelling justification,”
It is also worthy to note that not only has the United States Supreme Court historically not taken one single approach to the application of stare decisis, the Court
With these principles in mind, any analysis of the impact of stare decisis must focus on the individual case and the reason for overruling precedent. Thus, the reasons for overruling Lee are paramount to any articulated test and the special and compelling justifications to do so are overwhelming in this case. As I agree with the well-articulated reasons expressed by Justice CAVANAGH and Justice WEAVER, I will not repeat them here.
1 Helvering, 309 US at 119.
See 14 Penn Plaza LLC v Pyett, 556 US 247, 280; 129 S Ct 1456; 173 L Ed 2d 398 (2009) (Souter, J., dissenting).
Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L Ed 2d 164 (1984).
Seminole Tribe of Florida v Florida, 517 US 44, 66; 116 S Ct 1114; 134 L Ed 2d 252 (1996).
Any of these approaches to stare decisis can be valid depending on the issues before the court. However, the factors used in any of these tests may or may not be applicable in any given case.
See Supreme Court Decisions Overruled By Subsequent Decisions, available at <http://www.gpoaccess.gov/constitution/pdf2002/048.pdf> (accessed July 28,2010), for a partial list of United States Supreme Court cases (covering the period from 1810 to 2001) that overrule precedent. Numerous additional examples can be found on this list of cases that do not mention or discuss the phrase “stare decisis” despite the fact that the case overrules precedent.
Dissenting Opinion
(dissenting). I dissent. In one fell swoop, the majority permits unlimited interference by courts in the local educational process and rewrites the entire constitutionally based legal doctrine governing stand
The majority reverses the lower courts’ rulings, however, by creating a vague new standing “test”— which is really no test at all — that violates the constitutional separation of powers mandate and gives courts unbounded discretion to overturn the decisions of other branches of government. In its haste to overrule this Court’s standing jurisprudence, instead of addressing the issues framed by the parties, the majority asks and answers a question solely of its own making: whether Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001), was correctly decided.
Moreover, in concluding that plaintiffs have standing here, the majority illustrates the fundamental problem with its approach: it adopts no meaningful limitations for a binding doctrine that applies in every civil lawsuit brought in this state. Here it opens the courthouse doors for any school teacher, volunteer, contractor or student to demand that a court expel children from their schools even though a local school board has concluded that expulsion was inappropriate. The majority thus authorizes courts not only to invade the provinces of school districts and the state board of education, but also to deprive children of their rights to public education without affording them any due process protections or legal representation. Indeed, none of the children targeted for expulsion are even named as parties in this suit. It is unfathomable that a court nonetheless has the power to permanently expel them from school — yet the majority so holds.
Critically, in overruling the entire body of Michigan’s existing standing jurisprudence, the majority eschews the clear understanding of the “judicial power” held by the framers of our state constitution. It also eliminates our workable, principled standing test, which mirrors that of the federal courts and of many state courts with constitutions similar to our own. Indeed no state in the
Finally, in effecting these unprecedented changes to Michigan’s standing jurisprudence, the majority ignores the doctrine of stare decisis while paying lip. service to it. The majority inexplicably concludes that Lee was clearly wrongly decided, and that “Lee and its progeny departed dramatically from historical jurisprudence,” although each member of the current majority who served on this Court during the relevant time period — Justice CAVANAGH, Chief Justice KELLY, and Justice WEAVER — adopted Lee as the correct test at some point in the past.
For each of these reasons, I vigorously dissent. I would affirm the decision of the Court of Appeals, which faithfully and appropriately applied the law of this state in concluding that plaintiffs did not have standing to pursue this action.
I. THE QUESTION PRESENTED
This case, brought by four Lansing teachers and their union, originally presented a straightforward question: can a teacher sue a school board for its failure to expel a student who allegedly assaulted that teacher? To be clear, this case does not ask whether the public has an interest in the welfare of its teachers; our desire for their safety is indisputable. Nor does the case ask whether § 1311a of the Revised School Code, MCL 380.1
Accordingly, this case specifically asks whether the courts may decide, at the behest of a particular teacher, that a school board must permanently expel a particular student without any notice to the student or his parents. The plaintiff teachers argued that they should be empowered to seek a court order directing permanent expulsion of students under MCL 380.1311a(l). The majority agrees and holds, under its broad new standard, that plaintiffs have standing to proceed.
This holding is contrary both to settled principles of law regarding when a party has statutory and constitutional standing to bring a claim, as well as to the result demanded by the particular facts and circumstances of this case. The school code itself clearly establishes that the mandate in MCL 380.1311a(l) is to be enforced by the state executive branch and the locally elected school boards. Moreover, it is for the school districts — not the courts or individual teachers — to decide whether a particular student committed an assault requiring ex
Finally, plaintiffs have never described how the courts could successfully intervene. Their analysis fails to account for the fact that a board’s decision to expel a student occurs only after a disciplinary proceeding where the student’s constitutional rights are protected and where the board must make a careful, discretionary, factual decision concerning whether the student had the requisite intent to commit a “physical assault” as defined by the school code. According to the Michigan Association of School Boards, more than 100,000 such disciplinary proceedings occur in Michigan each school year. Yet plaintiffs seek to intervene after the fact in a case where the students are not represented, asking the Court to revisit and overrule innumerable decisions of the elected school boards. Moreover, plaintiffs never explain why other enforcement mechanisms — including not only the explicit statutory enforcement provisions, but also negotiations with the school board under their collective bargaining agreement — are inadequate to ensure appropriate enforcement of the applicable statute.
Thus, like the lower courts, I cannot conclude that teachers have standing to obtain court orders compelling expulsion of students in contravention of a school board’s decision that the students’ acts did not require expulsion. Perhaps most significantly, by choosing to overrule this Court’s constitutional standing doctrine sua sponte, the majority gives the courts carte blanche to invade the school board’s decision-making province, depriving those boards of their constitutionally delegated responsibilities and depriving students of their rights to public education without affording them due process. This case thus illustrates the absolutely unten
A. LOCAL SCHOOL DISTRICTS AND THE REVISED SCHOOL CODE
1. GENERAL POWERS AND DUTIES OF SCHOOL DISTRICTS
The Revised School Code, originally enacted in 1976,
Significantly, both the constitution and the school code make plain that school districts’ central purposes are the education and protection of students. Const 1963, art 8, § 2, requires a system of free public schools and states simply: “Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.” The school code, in turn, defines district functions to include “[ejducating pupils,” MCL 380.11a(3)(a), and “[providing for the safety and welfare of pupils while at school or a school sponsored activity or while en route to or from school or a school sponsored activity,” MCL 380.11a(3)(b). A district’s functions with regard to
2. DISCIPLINARY POWERS AND DUTIES OF SCHOOL DISTRICTS
School districts’ powers and duties with regard to students include disciplinary measures subject to varying degrees of discretion by the board and its employees. For example, a district has discretion to suspend or expel a student who is “guilty of gross misdemeanor or persistent disobedience if, in the judgment of the school board or its designee, as applicable, the interest of the school is served” by suspension or expulsion. MCL 380.1311(1). A school board must permanently expel
The statutory provision at issue in this case, MCL 380.1311a(l), was added to the school code by the Legislature in 1999 as one of several bills — including the safe schools and communities law, 1999 PA 23— addressing school safety and student discipline.
MCL 380.1311a(l) requires permanent expulsion “[i]f a pupil enrolled in grade 6 or above commits a physical assault at school against a person employed by or engaged as a volunteer or contractor by the school board” and the assault is properly reported to school officials. For purposes of this section, “physical assault” means “intentionally causing or attempting to cause physical harm to another through force or violence.” MCL 380.1311a(12)(b).
3. ENFORCEMENT
The school code’s provisions are enforced by several mechanisms. First, school board members, school officials, and any “other person who neglects or refuses to do or perform an act” required by the code, or “who violates or knowingly permits or consents to a violation” of the code, is subject to misdemeanor prosecution. MCL 380.1804. Second, under MCL 380.1806, a school board “may dismiss from employment and cancel the contract of a superintendent, principal, or teacher who neglects or refuses to comply” with the code. Third, because the members of school boards and the state board of education are elected officials, their acts and policies are regularly reviewed — and accepted or rejected — by the electorate.
It is also significant that the Legislature has enacted a comprehensive, carefully monitored scheme to address safety within our schools. For example, the statewide school safety information policy requires school
B. TEACHERS’ STANDING TO SUE UNDER SECTION 1311a OF THE REVISED SCHOOL CODE
1. STANDING AND GROUNDS FOR COURT INTERVENTION
Despite the Legislature’s comprehensive system, through which executive branch officials and local districts set evolving policies and monitor responses to school safety, the plaintiff teachers here ask the courts to intervene and dictate the Lansing School District’s responses to four past incidents — and potentially innumerable future incidents — involving student misbehavior. Each of the named plaintiffs alleges that she was
Plaintiffs sought this relief by requesting a declaratory judgment under MCR 2.605, which permits a court to “declare the rights and other legal relations of an interested party seeking a declaratory judgment.. . .” MCR 2.605(A)(1). They also sought a writ of mandamus under MCR 3.305, which requires a plaintiff to prove “it has a clear legal right to performance of the specific duty sought to be compelled and the defendant has a clear legal duty to perform such act.” Baraga Co v State Tax Comm, 466 Mich 264, 268; 645 NW2d 13 (2002) (quotation marks and citations omitted). Defendants moved for summary dismissal of plaintiffs’ complaint, arguing that plaintiffs did not have standing to seek either remedy.
“[I]f a court would not otherwise have subject matter jurisdiction over the issue before it or, if the issue is not justiciable because it does not involve a genuine, live controversy between interested persons asserting adverse claims, the decision of which can definitively affect existing legal relations, a court may not declare the rights and obligations of the parties before it.” [Associated Builders, 472 Mich at 125, quoting Allstate Ins Co v Hayes, 442 Mich 56, 66; 499 NW2d 743 (1993).]
Accordingly, Associated Builders explicitly held, in an opinion authored by Justice WEAVER, that the test enunciated in Lee, 464 Mich 726, governs standing in declaratory actions and, as here, in actions where a plaintiff seeks to enforce an alleged statutory right but the statute does not confer standing by its own terms. Associated Builders, 472 Mich at 127 n 16. Therefore, until today, plaintiffs bore the burden of establishing each of the following elements of standing in order to invoke court jurisdiction:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly. .. trace [able] to the challenged action of the defendant, and not.. . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” [Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d*399 351 (1992) (citations omitted); quoted and adopted by Lee, 464 Mich at 739; quoted and applied to declaratory actions in Associated Builders, 472 Mich at 126-127.]
Here plaintiffs have not established a legally protected interest in, or clear legal right to, expulsion of students under MCL 380.1311a(l). Plaintiffs also have not shown that defendants had a clear legal duty to expel the students under the facts presented or that plaintiffs’ interests can be addressed by a favorable court decision. Therefore, they cannot establish standing to seek relief against the school board under MCL 380.1311a(l).
2. THE ALLEGED RIGHT TO RELIEF ASSERTED BY PLAINTIFFS
Plaintiffs argue that the text of MCL 380.1311a(l) creates an enforceable right in teachers and a corresponding duty owed by school districts to teachers. To determine whether a plaintiff has standing created by a statute, the court begins by considering “the statutory language to determine legislative intent.” Miller v Allstate Ins Co, 481 Mich 601, 610; 751 NW2d 463 (2008). As an initial matter, many of the cases cited by plaintiffs on this point are inapposite because they address whether a statute creates or implies a right of action for damages against a private party.
Some of the relief requested by plaintiffs is clearly unavailable because they improperly ask the court to require the executive branch and the school district to make discretionary decisions in a particular manner. Although a plaintiff may seek to compel the exercise of discretion through a writ of mandamus, he may not compel the exercise of discretion “in a particular manner.” State Bd of Ed v Houghton Lake Community Sch, 430 Mich 658, 666; 425 NW2d 80 (1988) (emphasis added). Courts are not empowered to require the school board to cancel an employee’s contract for fading to comply with the school code. Rather, MCL 380.1806 clearly establishes that a decision to terminate an employee under these circumstances lies within the board’s discretion because the statute states that the board “may” dismiss an employee for violating the code. A statute’s use of the word “may” in this context
Accordingly, the only obtainable relief sought by plaintiffs depends on their argument that they have a clear, legally protected right to the expulsion of the four students described in the complaint and, potentially, to innumerable future students. They stress that MCL 380.1311a(l) addresses assaults on a specific, circumscribed group of people — any “person employed by or engaged as a volunteer or contractor by the school board” — that includes teachers like themselves. But nothing in the code suggests that the statute therefore creates an enforceable right in, or a duty to, this group of people. As explained above, the text of the 1999 statutory amendments is aimed at creating a comprehensive, statewide program of student discipline governed by the state board of education and the local districts. There is no indication of a legislative intent to
Plaintiffs cite two cases in which courts entertained suits brought by teachers who sought interpretation of school code provisions: Detroit Federation of Teachers v Detroit Bd of Ed 396 Mich 220; 240 NW2d 225 (1976) (addressing the former code that predated the 1976 revised code), and Roek v Chippewa Valley Sch Dist, 122 Mich App 76; 329 NW2d 539 (1982). In Detroit Federation of Teachers, this Court agreed with the circuit court’s declaratory decision stating that the defendant board “shall enter into a written, individual contract with each ‘duly qualified’ teacher in its employ” because written contracts with teachers were required by former MCL 340.569, but we concluded that the lower courts erred by directing the kind of contract individual teachers would receive. 396 Mich at 222, 226. In Roek, the Court resolved the parties’ dispute over language in MCL 380.1236(2), concluding on the basis of undisputed facts that the plaintiff qualified, as a matter of law, as a teacher employed as a substitute teacher for 120 days or more during a school year and thus had the basic right to be given first opportunity to accept or reject a contract under certain circumstances. 122 Mich App at 78-79. Neither of these cases supports plaintiffs’ claim for standing here.
These cases were concerned with teachers seeking judicial action with regard to teacher contracts. Thus, the cases addressed issues germane to teachers as direct parties to statutorily specified employment relationships. Moreover, because the cases involved the defendants’ duties to teachers in the employment context,
The case before us does not arise from the parties’ request for the court to interpret, as a matter of law, mandatory statutory language addressing teacher contracts. Rather, the parties agree that the statutory language is unambiguous and needs no further interpretation. Instead, plaintiffs asked the court to revisit a school board’s discretionary factual decision as it relates to a disciplinary scheme governing defendants’ responses to student behavior in student disciplinary proceedings. Thus, instead of supporting plaintiffs’ argument, the holdings of Detroit Federation of Teachers and Roek depend on contrasting facts and illustrate that this case does not involve a statute creating a clear right in plaintiffs or a clear duty on defendants’ part as their employer.
Crucially, plaintiffs’ reasoning is by no means limited to teachers. Upon accepting plaintiffs’ claim that they
3. PLAINTIFFS’ REMEDIES
Plaintiffs’ claims fail primarily for the above reason: the Revised School Code does not clearly create legal rights in teachers to compel expulsion of students under MCL 380.1311a(l). But plaintiffs have also failed to show that the Legislature intended to authorize private suits to enforce MCL 380.1311a(l) or that the other
With regard to plaintiffs’ mandamus complaint, relief is available only if “the law has established no specific remedy” for a duty created by law. Houghton Sch, 430 Mich at 667. The cases cited by plaintiffs similarly hold that, when a right or duty is imposed by statute, “the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive.” Pompey, 385 Mich at 552. As already discussed, the Legislature clearly vested enforcement of the code and its provisions in the executive branch, through misdemeanor prosecutions under MCL 380.1804, and local school districts, which have discretionary power to terminate employees and officials who violate the terms of the code, MCL 380.1806. With regard to school safety, the code provides an additional layer of local and executive branch monitoring and enforcement through the statewide school safety information policy, MCL 380.1308, and reporting requirements, MCL 380.1310a. Thus, the code’s express terms provide particular remedies applicable to MCL 380.1311a. This should end the inquiry; these remedies generally should be deemed exclusive.
Plaintiffs argue, nonetheless, that they may still seek declaratory or mandamus relief if the statutory remedies are inadequate. This Court has never accepted the argument that courts may create new remedies for the violation of statutory duties on the basis of a party’s claim that existing statutory remedies are inadequate. In Lash, this Court rejected the argument — which is rooted in dictum from Pompey, 385 Mich at 552 n 14 — that an additional remedy might be permitted to
In any event, plaintiffs certainly have not shown that the available enforcement mechanisms are inadequate. In addition to the statutory mechanisms discussed above — and in addition to the fact that school board members, as elected officials, must answer to the public for their acts and policies — plaintiffs never address why their contractual bargaining process is inadequate to address their safety concerns. Indeed, plaintiffs concede that their bargaining agreement with defendants includes provisions to protect the workplace safety of its members.
Finally, in light of the broad powers the school code establishes in executive branch officials and local school boards, permitting individual plaintiffs to enforce MCL 380.1311a could violate both the terms of the code and the Michigan Constitution. Although this Court continues to debate the constitutional ramifications of our standing doctrine, we do not disagree about the constitutionally mandated separation of powers among our three branches of government: “No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in th[e] constitution.” Const 1963, art 3, § 2. Thus, it is clear that the courts cannot exercise powers expressly allocated to other branches of government. Here, the constitution expressly granted the power to create and supervise public schools to the state board of education, Const 1963, art 8, § 3, and the Legislature, Const 1963, art 8, § 2, which has delegated governance of the schools in part to the local school boards, MCL 380.11a(5) and (7). Accordingly, the constitution itself supports the conclusion that courts may not compel acts of the local school boards without express, constitutionally sound authorization to do so. The trial court made this very point in its decision granting summary disposition:
4. REDRESSABILITY AND THE EFFECTS ON STUDENTS’ CONSTITUTIONAL RIGHTS
On a related significant point, plaintiffs offer no workable means by which a court could enforce their alleged rights to expulsion of students under MCL 380.1311a(l) even if the court had some power to intervene through declaratory relief or a mandamus order. Plaintiffs’ failure in this regard informs and strengthens the conclusion that the statute does not create legally enforceable rights in, or duties to, plaintiffs at all.
Plaintiffs’ complaint depends entirely on their allegation that the four named students committed “physical assaults” as defined by the code. Plaintiffs tacitly proceed as if this allegation were undisputed or could be decided by the court. To the contrary, the parties agree that the factual determination whether a student committed a physical assault for purposes of the school code is a discretionary one for the school board. Although no authority suggests that a teacher has standing to appeal a school board’s disciplinary decision with regard to a particular student, the Court of Appeals has concluded that when a student appeals such a decision, “in reviewing the disciplinary orders of a school administration, the courts of this state are bound by that administration’s factual findings so long as they are supported by competent, material and substantial evidence.” Birdsey v Grand Blanc Community Sch, 130 Mich App 718,
Although we accept as true the facts alleged by a plaintiff in a complaint for purposes of a defendant’s motion for summary disposition under MCR 2.116(C)(8), Kuznar v Raksha Corp, 481 Mich 169, 176; 750 NW2d 121 (2008), plaintiffs’ characterization of each event as a “physical assault” as defined by MCL 380.1311a(12)(b) is a conclusion drawn from the statutory terms — not a fact.
Indeed, all other issues aside, plaintiffs’ claims with regard to the four named students appear moot in any event because the disciplinary proceedings concluded years ago. The alleged assaults occurred in January 2007, September 2006, May 2006, and October 2005. Even if some of the students are still enrolled in the district, plaintiffs provide no authority suggesting that they could be expelled now, had they been expelled at the time of the incidents, by now each of them could have petitioned for reinstatement to public school under MCL 380.1311a(5)(b) (a court may grant a petition for reinstatement beginning 180 days after the date of expulsion).
With regard to future students, plaintiffs do not explain how a declaratory judgment requiring defen
Finally, as noted, permitting plaintiffs’ complaint to proceed here permits any person who alleges he is the victim of student misbehavior to independently sue the board when the board concludes that the student’s acts did not qualify for mandatory suspension or expulsion. That is, under the majority’s analysis, any employee, volunteer, or contractor of the school may now collaterally sue on the basis of assault allegations under MCL 380.1311a(l). And any student may sue, seeking suspension or expulsion of a fellow student, on the basis of assault allegations under MCL 380.1310(1). And these suits may be filed although the student disciplinary proceeding is over and although the accused student’s rights are not represented because he is not a party to the lawsuit.
Crucially, neither the majority nor plaintiffs ever address the rights of the accused students. Students
5. CONCLUSION: PLAINTIFFS CLEARLY LACK STANDING AND THE MAJORITY’S CONCLUSION TO THE CONTRARY ILLUSTRATES THE FATAL PROBLEMS WITH ITS NEW APPROACH TO STANDING
Plaintiffs have not borne their burden to show that they satisfy any of the applicable requirements for standing under Lee, as both lower courts correctly concluded. Plaintiffs have not shown that MCL 380.1311a(l) creates a legally protected and redressable interest in teachers for which the courts may provide relief, particularly in a case involving only the teachers and the school district, but not the students at issue. Further, the foregoing discussion shows that plaintiffs could not satisfy any meaningful standing test.
Indeed, plaintiffs could not assert standing even under the former tests the majority cites with approval. Significantly, the parties essentially agree that the
Yet the majority rejects this Court’s standing test and concludes, without any examination of the school code or the ramifications for students’ constitutional rights, that plaintiffs — and, by necessary analogy, all school employees, contractors, volunteers and fellow students — have standing. As I have explained, the school code is replete with clear indications that the Legislature did not intend to create a right of action in teachers under MCL 380.1311a(l) and intended for the school code to be enforced under MCL 380.1804 and MCL 380.1806. The majority concludes otherwise by simply observing that MCL 380.1311a “suggests that plaintiffs have a substantial and distinct interest.” (Emphasis added.) Then, without citation and contrary to the most essential tenet of statutory interpretation, the majority expressly departs from the statutory text and states that, although the Legislature has not unambiguously expressed an intent to confer standing, a court may confer
Therefore, as in all cases requiring us to interpret an unambiguous statute, resort to legislative history is inappropriate. In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Further, even when reference to legislative history is appropriate, staff analyses created within the legislative branch “are entitled to little judicial consideration” because “[i]n no way can a ‘legislative analysis’ be said to officially
Thus, the majority grants plaintiffs standing in direct derogation of the Legislature’s text and without any attention to the actual rights and remedies at stake, which include the constitutional rights of the unrepresented students. The majority’s application of its vague new test demonstrates the test’s unprincipled nature and far-reaching consequences. This Court’s opinion in Lee was aimed precisely at avoiding such consequences by acknowledging that courts do not have unfettered discretion to grant or deny standing at will, but should adhere to a common standard. A common standard prevents the expansion of the judicial power beyond its constitutional bounds which, in turn, protects both the rights of citizens and the separate purviews of the other branches of government.
II. LEE WAS CORRECTLY DECIDED AND ITS ARTICULATION OF STANDING IS A NECESSARY COMPONENT OF THIS STATE’S CONSTITUTIONAL JURISPRUDENCE
Relying on decades of developments in federal courts, the United States Supreme Court in Lujan set forth three elements so basic to the concept of what is needed
Unfortunately, none of these considerations has deterred the majority in this case from reducing Michigan’s standing requirements from the clear, developed standards articulated in Lee and its progeny to a broad and amorphous principle that promises to be nearly impossible to apply in a society that operates under the rule of law. The majority does so by relying on arguments and legal theories that have been considered and rejected as inconsistent with Michigan’s constitutional requirements. The majority also does so notwithstanding that Lee and its progeny provided Michigan with a clear, well-understood standing framework that clarified the law for the better by identifying the proper scope of judicial authority. The majority today upends and reverses this entire body of Michigan law in vindication of the personal views of the majority justices, but to the detriment of this state’s constitutional jurisprudence.
The Michigan Constitution both separates the powers of the various branches of government and limits the power of the judicial branch to hear cases when actual disputes exist. Thus, standing is a constitutional requirement. Because the Constitution vests “[t]he judicial power of the state .. . exclusively in one court of justice,” Const 1963, art 6, § 1, the source and boundary of this power is constitutional in nature. Lee therefore properly held that federal constitutional standards regarding standing may serve as a benchmark in Michigan.
Perhaps the most fundamental doctrine in American political and constitutional thought is the separation of powers of government into a tripartite system. This principle has been explicitly incorporated in Michigan’s constitutions.
The requirement of standing ... has a core component derived directly from the Constitution. .. .
... [T]he law of Art. Ill standing is built on a single basic idea — the idea of separation of powers. .. .
. . . [Qluestions. .. relevant to the standing inquiry must be answered by reference to the Art. Ill notion that federal courts may exercise power only “in the last resort, and as a necessity,” and only when adjudication is “consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” [Id. at 751-752, quoting Chicago & G T R Co v Wellman, 143 US 339, 345; 12 S Ct 400; 36 L Ed 176 (1892), and Flast v Cohen, 392 US 83, 97; 88 S Ct 1942; 20 L Ed 2d 947 (1968).]
The Court reaffirmed this principle in Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135 L Ed 2d 606 (1996), stating that “the doctrine of standing [is] a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches.” In applying these principles as articulated in the Michigan Constitution, we have previously explained:
*420 As part of this endeavor to preserve separation of powers, the judiciary must confine itself to the exercise of the “judicial power” and the “judicial power” alone. “Judicial power” is an undefined phrase in our constitution, but we noted in Nat’l Wildlife that
“ [t]he judicial power has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.” [471 Mich at 614-615.]
We went on in Nat’l Wildlife to distill this litany of considerations arising from the proper exercise of the “judicial power,” and we determined that “the most critical element” is “its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute.” [Nestlé Waters, 479 Mich at 292-293 (brackets in original).]
Moreover, these basic principles have been affirmed time and again by Michigan courts, as this Court traced in Lee:
Concern with maintaining the separation of powers, as in the federal courts, has caused this Court over the years to be vigilant in preventing the judiciary from usurping the powers of the political branches. Early on, the great constitutional scholar Justice THOMAS M. COOLEY discussed the concept of separation of powers in the context of declining to issue a mandamus against the Governor in Sutherland v Governor, 29 Mich 320, 324 (1874):
“Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers*421 alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.”
This position followed from the even earlier iteration of the standing doctrine by Justice Campbell in 1859 when, speaking for this Court, he said:
“By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties, and questions in litigation.” [Daniels v People, 6 Mich 381, 388 (1859) (emphasis added).]
Later, in Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884), this Court explained:
“The judicial power referred to is the authority to hear and decide controversies, and to make binding orders and judgments respecting them.” [Emphasis added.]
More recently, Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959), reaffirmed this concept by quoting this portion of Risser. [Lee, 464 Mich at 737-738 (brackets in original).]
And this history is certainly not exhaustive. For example, in 1920 this Court relied on the separation of powers and the development of judicial power in declaring unconstitutional a statute that would have conferred standing upon citizens to invoke the jurisdiction of the courts “not in the determination of actual controversies where rights have been invaded and wrongs have been done, but in the giving of advice to all who may seek it.” Anway v Grand Rapids R Co, 211 Mich 592, 606; 179 NW 350 (1920). The Court explained:
*422 This court and the court from which this case came by-appeal draw their power from the Constitution. The power given to both under the Constitution was judicial power.... This act confers powers not judicial and requires performance of acts non-judicial in character. For these reasons it is void in its entirety. [Id. at 622.]
Following the decision in Anway, the Legislature amended the act to remove the offending provisions that had allowed courts to exercise powers outside of the case and controversy context, and this Court upheld the revised act in Washington-Detroit Theatre Co v Moore, 249 Mich 673; 229 NW 618 (1930). Notably, the Court found significant that the act had been amended to apply “only to ‘cases of actual controversy.’ ” Id. at 676. It concluded that “[t]here must be an actual and bona fide controversy as to which the judgment will be res adjudicata. Such a case requires that all the interested parties shall be before the court.” Id. at 677.
In House Speaker v State Admin Bd, 441 Mich 547, 556; 495 NW2d 539 (1993), this Court again recognized the indisputable relationship between standing and the separation of powers, holding that “[i]t would be imprudent and violative of the doctrine of separation of powers to confer standing upon a legislator simply for failing in the political process.” More recently, in Federated Publications, Inc v City of Lansing, 467 Mich 98; 649 NW2d 383 (2002), we reaffirmed and explicitly declared that the “principal duty of this Court is to decide actual cases and controversies.” Id. at 112, citing Anway, 211 Mich at 610, and In re Midland Publishing Co, Inc, 420 Mich 148, 152 n 2; 362 NW2d 580 (1984). As this history makes clear, Michigan has consistently acknowledged that our state constitution limits the judicial power to hearing cases involving actual cases or controversies.
Indeed, the delegates’ discussion of this last section, when it was ratified at the Constitutional Convention, eliminates any doubt about the framers’ understanding of the judicial power in Michigan and directly confirms the Lee Court’s interpretation of the judicial power.
We are indeed contemplating a very serious change in what I think to be the history and the tradition of justice in this country. Mr. Wanger has pointed out the troubles that the Massachusetts supreme court got into when they allowed themselves to leave the theory of case and controversy. [Id. at 1546 (emphasis added).]
Indeed, even with regard to the limited expansion
The framers’ discussion on these points reinforces the Lee Court’s understanding of the judicial power and presaged the critical problems — which I express here and which have been expressed by my colleagues in the past — with expanding the judicial power beyond its traditional limit. It also reinforces our conclusion, in Nat’l Wildlife, that
[t]o the extent that the people of Michigan, through their constitution, have chosen to confer upon the judiciary three specific authorities potentially beyond the traditional “judicial power,” it seems unlikely that the people intended that any other such nontraditional authority could simply be incorporated as part of the “judicial power” by a simple majority of the Legislature. [471 Mich at 625.]
In sum, it is clear that the framers of Michigan’s constitution believed, first, that the judicial power is generally circumscribed by the case or controversy requirement and, second, that the only way to expand judicial power beyond the traditional case or controversy limitation was through affirmative amendment of the constitution. In accord, this Court has held that the constitutional standing test articulated in Lee must not be applied to limit judicial power otherwise expressly conferred in the Michigan Constitution. See Mich Coalition of State Employee Unions v Mich Civil Serv Comm, 465 Mich 212, 217-219; 634 NW2d 692 (2001).
Yet, since the decision in Lee, several members of the current majority have advanced the view that, because the Michigan Constitution does not expressly use the
is not a definitional provision that seeks to give meaning to the “judicial power.” Rather, art III, § 2 is a provision defining the limited judicial power of the federal judiciary, in contrast to the plenary judicial power of the state judiciary. The respective legislative articles of the two constitutions are analogous to the judicial articles: the legislative article of the Michigan Constitution does not purport to define the authority of its Legislature (for example, nothing is said therein concerning its authority over marriage, divorce, child custody, child support, alimony, or foster care), while the legislative article of the federal constitution does affirmatively confer authority upon the Congress, article I, § 8. The state judicial power, as with the state legislative power, is plenary, requiring no affirmative grant of authority in the state Constitution. The federal judicial power, on the other hand, as with the federal legislative power, is limited. Such power is exclusively a function, or a creation, of the federal constitution, and, therefore, must be affirmatively set forth. In similar fashion, the federal judicial power must also be affirmatively set forth, for it is also a function, or creation, of the federal constitution. Thus, US Const, art III, § 2 does not define the “judicial power;” rather it defines what part of the “judicial power” within the United States belongs to the federal judiciary, with the remaining part belonging exclusively to the state judiciary. That art III, § 2 variously employs the terms “cases” or “controversies” is not to confer a particular meaning upon the “judicial power,” but merely is to employ words that are necessary to the syntax of allocating the “judicial power” between the federal and*427 state governments. The concurrence/dissents would confuse the allocation of a power with its definition, and would thereby define the federal “judicial power” in the narrowest possible manner by limiting it through reference alone to the existence of a “case.” Even from the perspective of the concurrence/dissents, is there no more permanent aspect of the “judicial power” than that it pertain to a “case”?
In fact, the “judicial power” in the Michigan Constitution, with the several exceptions enumerated [explicitly in the Constitution], is the same “judicial power” as in the federal constitution, and it is the same “judicial power” that has informed the practice of both federal and state judiciaries for centuries. These historical principles were recognized by Lee, and we continue to adhere to them today. [Nat’l Wildlife, 471 Mich at 626-628.][22]
The proposition that Michigan courts are limited by an actual case or controversy requirement is beyond reproach. Michigan’s case or controversy requirement is not drawn from the federal “case or controversy” language, but rather the parallel limitations imposed in Michigan’s own constitution. This fact has been recognized by more than a century worth of Michigan caselaw, and thus it formed the basis for this Court’s decision in Lee to incorporate a standing test that reflected this reality. The majority’s author need only read his own opinions to realize as much. For example, in People v Richmond, this Court recently reaffirmed that “it is the ‘principal duty of this Court... to decide actual cases and controversies’ That is, ‘ “[t]he judicial power... is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” ’ ” People v Richmond, 486 Mich 29, 34; 782 NW2d 187 (2010) (majority opinion by Cavanagh, J.) (citations omitted, emphasis added, ellipsis and brackets in original), citing Federated Publications, 467 Mich at 112, and Anway, 211 Mich at 610, 616.
Article VI of the Arizona Constitution, the judicial article, does not contain the specific case or controversy requirement of the U.S. Constitution. But, unlike the federal constitution in which the separation of powers principle is implicit, our state constitution contains an express mandate, requiring that the legislative, executive, and judicial powers of government be divided among the three branches and exercised separately. This mandate underlies our own requirement that as a matter of sound jurisprudence a litigant seeking relief in the Arizona courts must first establish standing to sue. [Bennett v Napolitano, 206 Ariz 520, 525; 81 P3d 311 (2003).]
The majority’s flawed constitutional analysis allows it to advance the false dichotomy that this state’s standing jurisprudence must be based either on prudential concerns or on constitutional underpinnings, but not both. As the above analysis demonstrates, however, the constitutional separation of powers constraints explicitly provided in Michigan’s constitution give rise to minimal constitutional standing requirements, which this Court may augment when additional, prudential concerns arise.
B. LEE AND ITS PROGENY: CREATING CERTAINTY IN MICHIGAN JURISPRUDENCE
Although the concept of “standing” touches every civil action filed in this state, prior to the adoption of the Lujan standard in Michigan this Court had only produced a general description of the principles governing standing. The most recent description that garnered support from a majority of this Court is found in House Speaker v State Admin Bd,
Standing is a legal term used to denote the existence of a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy. However, evidence that a party will engage in full and vigorous advocacy, by itself, is insufficient to establish standing. Standing requires a demonstration that the plaintiffs substantial interest will be detrimentally affected in a manner different from the citizenry at large. [House Speaker, 441 Mich at 554.]
Unsurprisingly, such a general proposition for a doctrine as important and far-reaching as standing proved difficult to apply. This fact became all too obvious in Detroit Fire Fighters, when this Court next examined Michigan’s standing doctrine. Detroit Fire Fighters resulted in a split decision in which no majority could be found to explain what elements were essential to standing in Michigan.
This background formed the context in which this Court again confronted this state’s standing principles in Lee where, by a vote of six to one, this Court adopted and incorporated Lujan into our standing jurisprudence. As we stated then:
In our view, the Lujan test has the virtues of articulating clear criteria and of establishing the burden of demonstrating these elements. Moreover, its three elements appear to us to be fundamental to standing; the United States Supreme Court described them as establishing the “irreducible constitutional minimum” of standing. We agree. [Lee, 464 Mich at 740.]
Consistent with this Court’s constitutional obligations, the nearly unanimous majority in Lee correctly noted that the Lujan test provides a practical and workable framework for addressing what was previously an amorphous and often difficult concept. In its most basic form, the doctrine of standing can be properly reduced to the Lujan factors. What is standing if not the requirement that a plaintiff either has suffered or is in
By introducing an objective framework based on three well-developed and readily understandable criteria — injury in fact, causation, and redressability— the Lee decision simplified and made more practical the doctrine of standing in this state. As is evidenced by how justices on this Court could not previously agree about what, exactly, standing meant in Michigan under House Speaker, 443 Mich 560, the Lee framework provides certainty. The progeny of Lee bear this out: in a decade’s worth of cases, Michigan trial and appellate courts have consistently and appropriately applied Michigan’s standing doctrine.
Notably, Lee did not supplant or “sacrifice” this Court’s standing jurisprudence, as the majority in this case erroneously states. Eather, it adopted the Lujan test as a means of “supplementing the holding in House Speaker [441 Mich 547], as well as this Court’s earlier standing jurisprudence, e.g., Daniels and Risser.” Lee, 464 Mich at 740 (emphasis added). The majority today is not so kind. Characteristic of its reckless treatment of this Court’s precedent and its willingness to rewrite entire areas of the law rather than letting them develop over time, the majority today jettisons a decade of this state’s caselaw, which itself was based on nearly a century of
Reliance on the accessible and well-understood federal test was a proper and prudent course of action for this Court to take in Lee. Indeed, this Court has often affirmed the principle that it is not questioned that the “powers of Michigan’s judiciary ... are modeled after the federal judiciary ....” Charles Reinhart Co v Winiemko, 444 Mich 579, 592 n 24; 513 NW2d 773 (1994) (opinion by Riley, J.); see also Nat’l Wildlife, 471 Mich at 627-628. This is particularly true in the context of standing where “Michigan courts previously have relied upon federal authority when deciding standing questions.” House Speaker, 441 Mich at 560 n 21. And Michigan is not alone. Because states’ judicial powers are plenary whereas federal judicial power is limited, no state in this country has an explicit “case or controversy” requirement in its constitution analogous to that of the federal constitution. Nonetheless, nearly half the states have adopted the Lujan test or its equivalent as their own in accordance with their state constitutional requirements regarding standing.
Ultimately, the majority’s decision today redounds only to the benefit of those who wish to use the courts — the least politically accountable branch of government — to
By their diminishment of a traditional check and balance upon the exercise of the “judicial power,” the concurring/dissenting Justices [CAVANAGH, KELLY, and WEAVER] would, if their position were ever to gain a majority, inflict considerable injury upon our system of separation of powers and the rule of law that it has produced. [Nat’l Wildlife, 471 Mich at 628.]
Justice HATHAWAY has now provided those justices with their fourth vote, and with it surely will come the inevitable breakdown of the rule of law in the domain of standing that only Lee and its progeny had stood athwart.
III. THE MAJORITY’S SELF-SERVING AND INCONSISTENT APPROACH TO THE DOCTRINE OF STARE DECISIS
Finally, the far-reaching, deleterious impact of the majority’s decision in this case is equally inherent in its methods for overruling significant, precedential opinions of this Court. The majority’s claim that it has good reason to overrule Lee and its progeny, in contravention of the doctrine of stare decisis, is bankrupt and self-
A. THE MAJORITY’S STANDARDLESS APPROACH TO OVERRULING PRECEDENT
In Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), this Court articulated several factors for consideration before a court should overrule established precedent. “The first question, of course, should be whether the earlier decision was wrongly decided.” Id. at 464. But “the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate.” Id. at 465. Rather, “[cjourts should also review whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Id. at 464.
In jettisoning this Court’s constitutional standing jurisprudence, however, Justice CAVANAGH chooses not to rely on the Robinson factors. Instead, he cites Chief Justice Kelly’s analysis in Petersen v Magna Corp, 484 Mich 300; 773 NW2d 564 (2009). There, the Chief Justice expressed her disapproval of Robinson.
In declining to join Justice CAVANAGH’s discussion of stare decisis, Justices WEAVER and HATHAWAY go one step further. In their concurrences, they expressly advocate no standardized approach to overruling precedent. Concluding that “[tjhere is no need for this Court to adopt any standardized test regarding stare decisis,” Justice WEAVER advocates for a “case-by-case” analysis based on undefined notions of “judicial restraint, common sense, and fairness.” Her application of these notions to this case exemplifies the unprincipled nature of her position. She simply advances the empty, circular conclusion: “In serving the rule of law and applying judicial restraint, common sense, and a sense of fairness to the case at hand, I agree with and join the majority opinion’s holding that Lee and its progeny are overruled.” Justice HATHAWAY describes a judge’s duty when deciding whether to overrule precedent as a “policy determination” that “will be dependent upon the facts and circumstances presented.” Like Justice WEAVER, she votes to overrule Lee based on an empty, unexplained conclusion: “the reasons for overruling Lee are paramount to any articulated test and the special and compelling justifications to do so are overwhelming in this case.”
Justices WEAVER and Hathaway have each espoused their troubling views that reviewing whether a case should be overruled is merely a “policy” determination that need not be guided by any standard in several other recent cases, including Univ of Mich Regents v Titan Ins Co, 487 Mich 289; 791 NW2d 897 (2010), and McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010). Their professed approaches rely entirely on their personal, subjective views of the law. As Justice YOUNG
The rule of law, by definition, requires judges to decide cases on the basis of principles, announced in advance, rather than on a personal or subjective preference for or against a party before them. This ensures stability in the law despite the diversity of judges’ personal beliefs. Whether we, as judges, “like” the outcome is, quite simply, irrelevant to whether it reflects a correct conclusion of law. It is harrowing that Justices WEAVER and HATHAWAY either do not understand this concept or refuse to subscribe to it, preferring to base their decisions on subjective “policy consideration[s].” [Id. at 327.]
Justice MARKMAN also warned that the primary problem with this approach is that
“litigants will, of coruse, have no notice beforehand of which [‘analytical approach’] will be employed, for the justices themselves will not know this beforehand.” Petersen, 484 Mich at 380 (Markman, J., dissenting). Under the concurring justices’ “analytical approaches,”
“there [would be] no consistently applied . . . process with which the judge promises beforehand to comply. He or she may promise to be ‘fair,’ and he or she may seek to be fair, but there are no rules for how this fairness is to be achieved. There is only the promise that the judge will address each [precedent] on a case-by-case basis, using whatever [‘policy considerations’] he or she believes are required in that instance. And the suspicion simply cannot be avoided that these varying and indeterminate [‘policy considerations’] may be largely a function of the outcome preferred by the judge and by his or her personal attitudes toward the parties and their causes.” [Id. at 340 n 10 (Markman, J., dissenting), quoting Petersen, 484 Mich at 381-382 (Markman, J., dissenting).]
These warnings have come full circle in this case where the majority overrules an entire body of law without
B. AFTER SUPPORTING LEE IN THE PAST, THE MAJORITY NOW INEXPLICABLY CONCLUDES THAT IT WAS WRONGLY DECIDED
Significantly, the majority’s decision to overrule Lee under the various “standards” espoused individually by each justice depends, of course, on its threshold conclusion that Lee was wrongly decided. But this conclusion itself is belied by the reliance of Chief Justice KELLY, Justice WEAVER, and Justice CAVANAGH on the wisdom of Lee. Chief Justice KELLY and Justice CAVANAGH expressly joined the Court’s adoption of the Lujan test in Lee. Lee, 464 Mich at 750 (Kelly, J., joined by CAVANAGH, J., dissenting but “agree[ing] with the majority’s adoption of the Lujan test”).
In light of these justices’ former positions, I am mystified at their current conclusions that Lee was not only wrongly decided, but was so misguided that we should now throw Michigan’s standing jurisprudence into turmoil in order to overrule Lee. Indeed, their result has every appearance of a mere power grab intended to ascribe broad, unconstitutional authority to the Court as it is now configured with this new majority at the helm. Ironically, Justice Weaver’s dissenting comments in In re Certified Question from the Fourteenth Dist Court of Appeals of Texas, 479 Mich 498; 740 NW2d 206 (2007), are apropos. There, she reiterated her lack of support for MCR 7.305(B), which permits this Court to entertain requests for advisory opinions from foreign courts, because the subrule “lacks any limiting language on when the Court may answer a certified question ....” Id. at 550 (Weaver, J, dissenting). A lack of express limits, she opined, “leav[es] the door and the docket open to the whims of the majority.” Id.
As if to illustrate her point, the majority underpins its supposed consideration of the doctrine of stare decisis with its conclusion that our constitutional standing doctrine is “at the expense of the public interest. .. because it may prevent litigants from enforcing public rights, despite the presence of adverse interests and parties, and regardless of whether the Legislature in
C. MICHIGAN JURISPRUDENCE IN TURMOIL: THE MAJORITY’S INCREASING WILLINGNESS TO OVERRULE PRECEDENT WITH WHICH IT DISAGREES
Thus the majority continues to exhibit its absolute disregard for precedent inconvenient to its aims without regard to the consequences. As Justice MARKMAN emphasized in his dissent to the majority opinion in McCormick, 487 Mich at 265-266:
Even a cursory analysis of the majority’s treatment of precedent since it ascended to power in January 2009 reveals a lack of sufficient regard for recent precedents that is directly contrary to their own previous assertions of the need not to needlessly overrule cases on account of stare*447 decisis. Past complaints on their part that cases should not be overruled when the only thing that has changed is the membership of the Court have gone by the wayside.
“[A]ll the justices who comprise the majority . .. should more clearly recognize the consequences of what they are doing.” Id. at 265 (emphasis omitted). Indeed, in overruling numerous significant cases of this Court— the growing list of which is catalogued in McCormick by Justice MARKMAN, id. at 266-273 — in the brief period since the current majority came to power in January 2009, I find the majority’s feigned adherence to the doctrine of stare decisis here hard to swallow. Nothing about the majority’s decision today “ ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, [or] contributes to the actual and perceived integrity of the judicial process.’ ” Ante at 367, quoting Payne v Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed 2d 720 (1991). Rather, the majority throws into turmoil a well-accepted and constitutionally sound standing doctrine applicable to every civil suit filed in this state that this Court adopted to rectify the total uncertainty in this area that was evident in cases such as Detroit Fire Fighters, 449 Mich 629. Accordingly, I am nonplussed by Justice CAVANAGH’s ironic lip service to Alexander Hamilton’s warning that, “to ‘ “avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them ....”’” Ante at 366, quoting Petersen, 484 Mich at 314-315 (opinion by Kelly, J.), quoting The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 1961).
Finally, as Justice MARKMAN has also illustrated, this case presents yet another troubling element of the
IV FURTHER RESPONSE TO THE MAJORITY
Rather than ash, the majority’s stare decisis analysis should taste like bile in their mouths: like a bulimic after a three day bender, the majority justices now purge a decade’s worth of vigorous protestations that they are committed to the principle of stare decisis. As Justice YOUNG demonstrates at length in Univ of Mich Regents, 487 Mich at 321-323 (Young, J., dissenting), members of the majority stridently defended stare decisis for many years when past cases supported their dissenting positions. Then-Justice KELLY summed up their posi
As the Court established in Lee and as I recount here, Lee was built on this Court’s historical concepts of standing. By reversing the line of post-Lee cases here, the majority claims that it “brings this Court back to the status quo ante.” Unfortunately, the pre-Lee status quo resulting from House Speaker, 443 Mich 560, was confusion and bitter division regarding rules that provided no clear guidance regarding Michigan’s constitutional standing requirements.
Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all. [Morrison v Olson, 487 US 654, 712; 108 S Ct 2597; 101 L Ed 2d 569 (1988) (Scalia, J., dissenting).]
Finally, although the majority criticizes me for actually addressing the questions presented in this case, my analysis is necessary precisely because the majority applies an unworkable, amorphous approach to standing. The lower courts had little trouble agreeing, in relatively brief decisions, that plaintiffs do not have standing under the principles enunciated in Lee. But the majority’s approach so obscures the reasons courts impose standing requirements in the first place that it
The majority essentially concludes that plaintiffs have standing because their safety might have been one aim of MCL 380.1311a(l) without any regard to the Legislature’s actual intent or to the ramifications of this suit. For example, although no one in this suit represents students’ rights — and thus no one may consider their rights as the suit proceeds or in an eventual settlement — the majority presumes that the right result will simply come out in the wash after the complaint is authorized on standing grounds. Indeed, under the majority’s approach, what prevents anyone with a proclaimed “substantial interest” from suing a defendant such as the school board here in an attempt to trample on the rights of an unrepresented third party?
V CONCLUSION
For each of these reasons, I dissent. I would affirm the decision of the Court of Appeals, which reached the correct result and properly applied the law of this state. The majority’s conclusion that plaintiffs have standing here is devoid of any analysis and incorrect under any meaningful test. Its decision to grant standing here under an amorphous new test of its own making is unprincipled and opportunistic; in its haste to overrule
The parties addressed this issue only after the majority directed them to do so in this Court’s order granting plaintiffs’ application for leave to appeal. Lansing Sch Ed Ass’n v Lansing Bd of Ed, 485 Mich 966 (2009). Before this order issued — indeed, from the inception of this case — the parties agreed that Lee was the governing legal authority; each side affirmatively argued that Lee controlled and urged that Lee supported its position.
See Associated Builders, 472 Mich at 126-127 (Weaver, J.); Lee, 464 Mich at 750 (Kelly, J., dissenting, joined by Cavanagh, J.); Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 651-652; 537 NW2d 436 (1995) (Cavanagh, J., dissenting in part and concurring in part).
1976 PA 451.
Permanent expulsion generally means that a student may not attend any public school in Michigan. But expelled students may be eligible to attend alternative education programs and strict discipline academies or to receive in-home instructional services. MCL 380.1311(3).
1999 PA 102 to 104; 1999 PA 23.
Plaintiffs allege that one student threw a leather wristband with metal spikes, which hit a bulletin board “about two inches” from the plaintiff teacher’s head, bounced, and hit the teacher in the face. Plaintiffs further allege that two students separately hit plaintiff teachers with chairs. Each teacher suffered bruises as a result. A fourth student allegedly slapped a plaintiff teacher on the hack with enough force to cause stinging and to leave a pink mark. Plaintiffs state that each of these incidents was properly reported to school officials and each student was suspended but not expelled. The parties agree that the defendant school board apparently concluded that none of the four students named in the complaint committed “physical assaults” as defined by the code and, therefore, expulsion was not mandated by MCL 380.1311a(l).
E.g., Gardner v Wood, 429 Mich 290, 312-314; 414 NW2d 706 (1987) (finding no implied cause of action against a private party for violating a provision of the former Liquor Control Act, MCL 436.26c); Pompey v Gen Motors Corp, 385 Mich 537, 552-553, 560; 189 NW2d 243 (1971) (permitting suit against a private employer for violation of the plaintiffs statutorily created civil rights); Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689, 695-696; 588 NW2d 715 (1998) (finding no implied cause of action against a private party for violating the child care organizations act, MCL 722.111 et seq.).
A school district, its board members, and its employees generally qualify for governmental immunity. See MCL 691.1407(1) and (2) (establishing that a “governmental agency” and its board members and employees are generally immune from tort liability); MCL 691.1401(b) and (d) (defining “governmental agency” to include a "political subdivision” of the state and defining “political subdivision” to include school districts).
See also People v Chavis, 468 Mich 84, 94 n 6; 658 NW2d 469 (2003): “It is invariably the case that the prosecutor always has great discretion in deciding whether to file charges. Such executive branch power is an established part of our constitutional structure.” The prosecutor’s powers in this regard are tempered by “systemic protections afforded defendants” incident to criminal trials and by “elections, which call all office holders to account to their constituents.” Id.
The only authority plaintiffs cited to support their oft-stated conclusion that MCL 380.1311a(l) was specifically intended to protect employee safety is HB 5802, which became 2000 PA 230. But 2000 PA 230 did not enact MCL 380.1311a, as plaintiffs incorrectly assumed.
Plaintiffs expressly affirm in their brief that the plaintiff union “has bargained language in its master agreement with Defendants-Appellees to protect the workplace safety of its members.”
Compare Davis v Detroit, 269 Mich App 376, 379 n 1; 711 NW2d 462 (2006) (“Plaintiffs reliance on her allegation in her complaint that the city was engaged in a proprietary activity is unwarranted because only factual allegations, not legal conclusions, are to be taken as true under MCR 2.116(C)(7) and (8).”). Moreover, although plaintiffs have not properly placed in issue the school board’s determinations, I note that the students’ alleged acts, see note 6 of this opinion, do not unquestionably constitute physical assaults under MCL 380.1311a(12)(b), as plaintiffs simply presume. Particularly because the statutory definition of “physical assault” includes a specific intent element — “intentionally causing or attempting to cause physical harm,” MCL 380.1311a(12)(b) — the finder of fact at a disciplinary proceeding could conclude, on the basis of the mental state of the student or the circumstances surrounding each assault, that the student did not affirmatively intend to cause physical harm to his or her teacher.
Further, because it was the students’ behavior that injured plaintiffs, plaintiffs’ prayer for relief with regard to the four named students appears untenable for the simple reason that the alleged injuries were not caused by defendants’ failure to expel the students after the assaults.
Goss applies because Michigan maintains a public school system, Const 1963, art 8, § 2, and requires children to attend, MCL 380.1561. See Goss, 419 US at 574.
Most critically, the disciplinary provisions of the school code name not just teachers, but all employees, contractors, volunteers and students. The statutory language nowhere suggests that the Legislature intended for all these subclasses of the public to bring their individual complaints concerning school boards’ disciplinary proceedings to the courthouse.
See ante at 374 n 23.
Further, contrary to the majority’s characterization of such analyses, clearly the pre-enactment statements of a legislative staffer are by no means comparable to statements made by official, voting delegates to our constitutional convention, which I reference below.
See, e.g., Const 1908, art 4, § 1 (“The powers of government are divided into three departments: The legislative, executive and judicial.”); id. at art 4, § 2 (“No person belonging to 1 department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.”).
The Michigan Constitution also explicitly provides that the Legislature is to exercise the “legislative power” of the state, Const 1963, art 4, § 1, the Governor is to exercise the “executive power,” Const 1963, art 5, § 1, and the judiciary is to exercise the “judicial power,” Const 1963, art 6, § 1.
It is appropriate to consult constitutional convention debates when, as here, “ ‘we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept.’ ” Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642, 656; 698 NW2d 350 (2005), quoting Univ of Mich Regents v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975).
The delegates agreed that the constitutional advisory opinion provision was unique and intended to be very limited. For example, Delegate Wanger observed: “It has been emphasized by everyone supporting the advisory opinion practice that the courts will exercise restraint, that they will be very careful not to answer every question that is asked but merely to answer those which are of a very, very vital nature.” 1 Official Record, Constitutional Convention 1961, p 1548. Delegate Robert Danhof expressed a similar concern, advocating that the language of the provision should include “an admonition to the supreme court that it is desirable that this particular power be exercised very sparingly and, just as we mean, only upon the most solemn occasions upon very important questions of law.” Id. at 1549.
22 In Nestle Waters, we further rejected this argument when a party argued that the Legislature had conferred statutory standing on it, which should he sufficient even if the party could not meet the basic strictures of constitutional standing. We stated:
Justice Weaver persists in her argument that the textual differences between the federal constitution and our state constitution prove that the exercise of “judicial power” or the doctrine of separation of powers in our constitution means something radically different than it does under the federal constitution. This argument that separation of powers should be understood differently in the Michigan Constitution because the words “case” and “controversy” are not in our constitution suggests to us that Justice Weaver fundamentally misunderstands the doctrine of separation of powers. She refuses to accept that there is a constitutional limit on the Legislature’s authority to expand “judicial power” in the area of standing. In response, we stated in Nat’l Wildlife that
“[a]s the Michigan Constitution makes clear, the duty of the judiciary is to exercise the ‘judicial power,’ and, in so doing, to respect the separation of powers. While as a general proposition, the proper exercise of the ‘judicial power’ will obligate the judiciary to give faithful effect to the words of the Legislature — for it is the latter that exercises the ‘legislative power,’ not the judiciary — such effect cannot properly be given when to do so would contravene the constitution itself. Just as the judicial branch owes*428 deference to the legislative branch when the ‘legislative power’ is being exercised, so too does the legislative branch owe deference to the judicial branch when the exercise of the ‘judicial power’ is implicated. Even with the acquiescence of the legislative and executive branches, the judicial branch cannot arrogate to itself governmental authority that is beyond the scope of the ‘judicial power’ under the constitution. The ‘textual’ approach of [Justice Weaver] is a caricatured textualism, in which the Legislature is empowered to act beyond its authority in conferring powers upon other branches that are also beyond their authority.” [Nat’l Wildlife, 471 Mich at 637 (citations omitted; emphasis in original).] [Nestlé Waters, 479 Mich at 307-308.]
The majority cites Washington-Detroit Theatre Co, 249 Mich 673, for the proposition that “this Court long ago explained that Michigan courts’ judicial power to decide controversies was broader than the United States Supreme Court’s interpretation of the Article III case-or-controversy limits on the federal judicial power because a state sovereign possesses inherent powers that the federal government does not.” This is precisely correct, but not in the way the majority applies it. In fact, it actually undermines the majority’s conclusion. The majority here either fails to understand or willfully ignores the fact that the federal “case or controversy” requirement limits only the range of controversies that may be heard in federal courts, and that this is distinct from the requirement that an actual case or controversy exists in the first place. In short, that Michigan courts may decide types of controversies that the federal courts lack authority to decide does not mean that Michigan has no constitutional threshold for when a plaintiff may bring such a controversy. The Lee/Lujan standing test does not govern what types of cases/controversies may be brought, only whether a case/controversy exists in the first instance.
In Richmond, three members of the current majority held that the prosecutor’s case was moot, and therefore did not present an actual case and controversy, although the prosecutor had an interest in appealing the trial court’s adverse evidentiary rulings before voluntarily dismissing the charges. Here, plaintiffs have no recognized interest separate from that of the general public, and no private right of action to vindicate. Thus, ironically, the majority is content to block certain parties from proceeding based on “case and controversy” grounds, while allowing other parties to
As this Court explained in Mich Chiropractic Council:
In seeking to make certain that the judiciary does not usurp the power of coordinate branches of government, and exercises only ‘judicial power,’ both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate for judicial action. These include the doctrines of standing, ripeness, and mootness.
Federal courts have held that doctrines such as standing and mootness are constitutionally derived and jurisdictional in nature, because failure to satisfy their elements implicates the court’s constitutional authority to exercise only ‘judicial power’ and adjudicate only actual cases or controversies.. . . Likewise, our case law has also viewed the doctrines of justiciability as affecting ‘judicial power,’ the absence of which renders the judiciary constitutionally powerless to adjudicate the claim. . . .
Thus, we reiterate that questions of justiciability concern the judiciary’s constitutional jurisdiction to adjudicate cases containing a genuine controversy. [Mich Chiropractic Council, 475 Mich at 370-374 (emphasis in original).]
Cf. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 196; 631 NW2d 733 (2001) (“Justiciability doctrines such as standing ‘relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.’ ”), quoting Allen, 468 US at 750, quoting Vander Jagt v O’Neill, 226 US App DC 14, 26-27; 699 F2d 1166 (1983) (Bork, J., concurring).
House Speaker was decided by this Court before the United States Supreme Court released its opinion in Lujan.
Detroit Fire Fighters, 449 Mich at 631 (opinion by Weaver, J.) (lead opinion); id. at 650 (Cavanagh, J., joined by Boyle, J., concurring in part and dissenting part); id. at 641 (Riley, J., joined by Brickley, C.J., concurring); and id. at 661 (Mallett, J., joined by Levin, J., concurring in the result only).
As this Court aptly summarized in Lee, among the various opinions in Detroit Fire Fighters,
[s]ome focused on whether the plaintiff could establish an injury distinct from that of the public, others on whether the plaintiffs were in the zone of interest the statutory or constitutional provision at issue is designed to regulate. Perhaps the clearest template was set forward by Justice Cavanagh, who, along with Justice Boyle, advocated adopting the United States Supreme Court’s Lujan test. [Lee, 464 Mich at 739.]
See Lee, 464 Mich at 739-740 (incorporating the federal standing analysis articulated in Lujan into Michigan standing jurisprudence); Nat’l Wildlife, 471 Mich at 628-629 (organizational standing and legislative authority to grant citizen standing); Nestlé Waters, 479 Mich at 295-296, 302-303 (legislative authority to grant citizen standing); Rohde, 479 Mich at 354-355 (taxpayer and qui tam standing); Mich Chiropractic Council, 475 Mich 363; Associated Builders & Contractors, 472 Mich 117 (standing necessary in order to seek a declaratory judgment pursuant to MCR 2.605).
See ante at 357 n 3.
E.g., the following states do not have an explicit “case or controversy” requirement in their constitutions, yet have adopted or relied on the federal standing test as articulated in Lujan. Alabama — Stiff v Alabama Alcoholic Beverage Control Bd, 878 So 2d 1138, 1142 (Ala, 2003) (applying the Lujan test for standing); Alaska — Chenega Corp v Exxon Corp, 991 P2d 769, 785 (Alas, 1999) (recognizing Lujan)-, Arizona - Bennett, 206 Ariz at 525 (noting that, although “[a]rticle VI of the Arizona Constitution, the judicial article, does not contain the specific case or controversy requirement of the U.S. Constitution,” “federal case law [is] instructive” due to separation of powers principles and as a
See, generally, Nat’l Wildlife, 471 Mich at 617-623.
Notably, Chief Justice Kelly concluded that “Robinson is insufficiently respectful of precedent” and indicated that she “would modify it by shifting the balance back in favor of precedent.” Petersen, 484 Mich at 316-317. This allegiance to precedent is remarkably absent in this case despite the majority’s reliance on Chief Justice Kelly’s Petersen formulation.
See also Crawford, 466 Mich at 256-257 (per curiam opinion relying on Lee in which Cavanagh, J., concurred).
The majority argues that, in federal courts and the dozens of states who use the Lujan framework, those entities’ respective constitutions cause serious detriment to the public interest. This alarmist reasoning provides no support for overruling Lee. Indeed, this whole argument underscores the manipulative nature of the majority’s stare decisis test, which here is used to displace a widely accepted and commonly used national standard. More disruptive to the public interest is the state of law to which the majority returns Michigan today: no defined standards, thus allowing litigious individuals to bring unfounded lawsuits against fellow citizens.
Indeed, of the amici curiae who responded to the majority’s request to file briefs analyzing the correctness of Lee, only one questioned Lee and the cases following it: the National Wildlife Federation (NWF), which was the successful plaintiff in Nat’l Wildlife, 471 Mich 608, which applied Lee. Most notably, even the NWF does not argue that plaintiffs have standing here. Rather, the NWF stresses its belief that if the Legislature expressly grants a plaintiff standing in a statute, the courts should permit the suit without regard to whether the plaintiff also qualifies for standing under the Lee/Lujan test.
The majority persists in suggesting that Michigan had a clear, workable standing doctrine for “decades” before Lee was decided. To the contrary, our 1993 decision in House Speaker, where the Court was apparently unable to make sense of Michigan’s historical approach to standing, left our standing doctrine muddled and impossible to apply with any consistency.
The majority’s unexplained suggestion that, in Michigan, “controversy” means something different than throughout the rest of the nation
Univ of Mich Regents, 487 Mich at 320-321 (Young, J., dissenting).
May I sue a landlord under a local noise ordinance for failing to evict my noisy neighbor without notice to my neighbor? May I sue the police department for failing to ticket the teenagers loitering outside my favorite window seat at a local restaurant? In each case, I might allege that the defendant had a duty to enforce a particular law and that I had a “substantial interest” in its enforcement under the facts presented. Further, in each case, the named defendant may be perfectly willing to
Under th[e former dissenting] view of the “judicial power,” “any person,” for example, could seek to enjoin “any person” from mowing his lawn with a gas-powered mower because such activity allegedly creates air pollution and uses fossil fuels when other alternatives are available. “Any person” could sue “any person” for using too much fertilizer on his property, or allowing too much runoff from a feedlot on his property. “Any person” could sue “any person” from using excessive amounts of pesticides in his home or garden or farm. “Any person” could sue “any person” for improperly disposing of used petroleum-based oils. “Any person” could sue “any person” for improper backyard grilling practices, excessive use of aerosol sprays and propellants, or wasteful lawn watering. [471 Mich at 649-650.]
At least the scenarios presented in Nat’l Wildlife involved suits against the allegedly offending party; here, the majority permits plaintiffs to maintain suit despite the absence of the students they seek to punish.
Members of the executive branch are thus vulnerable to suits filed by any person claiming a substantial interest in their affairs. I note the following timely illustration of what may arise. In the midst of the city of Detroit’s ongoing financial woes and the ongoing crisis in its public school
See McCormick, 487 Mich at 286-287 (Markman, J., dissenting) (“By nullifying the legislative compromise that was struck when the no-fault act was adopted — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance — the Court’s decision today will restore a legal environment in which each of these hazards reappears and threatens the continued fiscal soundness of our no-fault system.”).