Mayor of Detroit v. State

228 MAYOROF THE CITYOF DETROITv STATEOF MICHIGAN JUDICIALATTORNEYSASSOCIATIONv STATEOF MICHIGAN 201850, September 2, 1997, Docket Nos. 201852. Submitted at Detroit. 3, 1998, appeal granted, Decided March at 9:15 am. Leave to Mich 882. mayor city city brought The of the of Detroit and the an action in the Wayne against Department Circuit Court the state and the of Man- agement Budget seeking regarding and a declaration the constitu- tionality provisions pertaining of the of 1996 PA 374 the transfer funding responsibility city for the 36th District Court to the requirements whether the act violates the notice contained in MCL 21.238(2); 5.3194(608)(2) 21.235(2); MSA and MCL MSA 5.3194(605)(2), Legislature appropria- because the did not make an pay activity tion sufficient to for the increase in an or service required city. court, Colombo, Jr., J., granted The Robert J. summary disposition plaintiffs, finding for the that Act 374 violates Amendments, 1963, 9, 25, the Headlee §§ Const art 29. The defend- appealed. (Docket 201850). ants No. Attorneys The Judicial Association and the Government Admin- (jaa) bargaining representa- istrators Association the collective (gaa), Wayne tives of the Circuit Court and the Detroit Court, brought Wayne Recorder’s an action Circuit Court against state, Governor, Attorney General, Wayne County, Wayne County Commissioners, alleging and the Board of public employ- that 1996 PA 374 violates the constitution and the (PERA), seq.\ 17.455(1) ment relations act MCL 423.201 et MSA et seq. county county The and the board of commissioners filed a against state, Governor, Attorney cross-claim and the Gen- eral, alleging provisions also certain of Act 374 to be unconstitu- court, Colombo, Jr., X, granted summary tional. The Robert J. dis- position county commissioners, finding for the and its board of provisions pertaining of Act to the Detroit Recorder’s Court, including making Wayne County employer those employees working transferring in the Recorder’s Court and those Wayne funding obligations County, violate the Headlee Amend- enjoined enforcing ments. The court also the state from Act 374 to jaa gaa county coemployer the extent that it makes the Clause, Separation finding members, of Powers a violation of the sharing provides the act where Const govern- employment matters two branches over coemployment provisions of found that the The court also ment. state, Governor, violate the pera. Act 374 did not jaa gaa appealed. Attorney appealed and the cross and the General appeals 201852). (Docket The were consolidated. No. Appeals held: The Court The Amendments. order does not violate the Headlee 1. Act 374 part No. of the order in Docket

in No. 201850 and the Docket determining Amendments Act 374 violates the Headlee that must be reversed. guarantee units’ do not that local 2. The Headlee Amendments year

spending the 1978 base level. levels will not increase from proportion They only guarantee state will not reduce its that the services, necessary existing and activities or costs of necessary pay entirely when it mandates new costs state will increases the level of or to the extent the state activities or services activity compare provided existing state aid dur- an or service. To year issue, ing formulation later the “state-to-local” 1978 and a compares applied. the ratio of total state be This method should activity necessary required required to total costs for the aid for a activity ratio of state aid to an individual local unit in 1978 with the activity necessary activity that unit for the for the to the costs for formulation, year challenged funding. Under this in the activity providing obligated afford each unit or ser- state is to provided proportion funding state on a same that the vice the statewide basis in 1978. activity operation or service in these cases is the 3. The relevant of trial courts. 1978, law mandated that local units fund trial courts. 4. In state operated the circuit and dis- In the local units financed and portion a salaries. trict courts and the state subsidized Nothing activities for local units vis-á-vis in Act 374 mandates new comparison existing with 1978.Act 374 continues activ- the state in any activity required the level of of local ities and does not increase directly address state man- units. The Headlee Amendments do not post-- among in shifts local units or reductions dates that result particular units. 1978 state subsidies for local proportion nec- reduce the state-financed 5. Act 374 does not essary operations units at issue from that trial court to the costs of provided a statewide basis in 1978. on coemployment relationship units between local 6. The Separation violates the of Pow- courts created Act 374 228 part Clause, 3, § ers 2. in Docket Const the order creating finding provisions coemployer No. 201852 of Act 374 county relationship Separa- between the and the court violate the tion of Powers Clause must be affirmed. authority judiciary possesses power 7. The as inherent all the necessary powers govern- to exercise its as a coordinate branch of power possesses

ment. The circuit court the inherent and exclusive manage operations. all its 8. 593a of Section Act 374 allows too much interference with the judiciary’s authority manage operations. inherent its internal grant authority Although may to the branch specific, certainly it is not limited. 593a(3) outright 9. Subsection an takeover of the court’s employees, making employees county. them Subsection 593a(3) Separation violates the of Powers Clause. authority 593a(4) grants equal 10. Subsection of Act which county establishing personnel policies the court all procedures, Separation violates Powers Clause. The court’s inherent administrative include the manage personnel affecting working all matters within power-sharing relationship its branch. The is too much of an intru- operations sion into internal of the court and is inconsistent Separation with the of Powers Clause. Separation 593a(5) 11. Subsection is inconsistent with the of managerial powers Powers Clause because it divides the inherent judiciary county. of the court the It between the and creates too great operations by of an intrusion the into internal of the court giving county authority concerning the ultimate all economic issues relating employees working to the within the court. The court has authority personnel the inherent to determine the salaries of its long budget appropriation. as it does not its total exceed 593a(3) (5) 12. Subsections of be Act must stricken as unconstitutional. (9) by 593a(7) 13. Subsections and are not affected the stricken 593a(3), (4), (5) subsections and can and be read and enforced independently provisions. of the stricken (8) they 593a(6) 14. and be Subsections must stricken because expressly depend relationship on the unconstitutional created in 593a(4) subsections 593a(10), (12), (11), (13) 15. The clear intent of subsections by merely deleting Act 374 still be can effectuated references to 593a(3) striking in subsection those subsections rather than the entire subsections. provisions Act 374 § of 593a are severable from 16. The stricken entire act. to strike down the

and there is no need pro- stricken exists under which the No set of circumstances 17. would be valid. visions of Act 374 ripe powers separation issues involved here are 18. review. government cooperation Although between the branches 19. appropriation determining process a reasonable to the essential appropriated judiciary, expenses must be the the amount for the judiciary by good-faith negotiation and the between determined “experimental” legislation legislative under considera- branch. The bargaming positions in the of the here creates an imbalance tion good-faith negotia-

judiciary legislative branch that makes tions more difficult. pera by relating are rendered moot 20. The issues provisions striking of Act 374. of the unconstitutional part. part

Affirmed in and reversed majority’s Markman, P.J., dissenting conclusion that a from the provisions of 1996 PA 374 must be stricken from the number of the Clause, Separation Const of Powers act as violative any potential separation powers 3, 2, concerns are stated that yet ripe not for decision. by majority may provisions Although struck down 1. branch, possibility overreaching it allow the set of circumstances exists been demonstrated that no has not constitutionally valid, requirement a under which Act 374 would constitutionality challenge of a statute. That a for a facial conceivably equivalent might is not occur constitutional violation necessarily finding a must occur. violation prohibit powers does not 2. The constitutional jointly pursuit powers separate branches exercise of distinct only end; rather, one branch from exercis- it forbids of a common separated powers powers ing branch. The of another powers overlap; however, the exercise of these branches do not operate with absolute are not entitled to often does. The branches subject-matter independence other areas in which in those majority possess legitimate Although the interest. branches also ancillary powers, correctly inherent branch has finds majority inherent assumes without gener- necessarily exclusive, despite powers will the fact that such may ally governmental which another branch matters over relate to only possess power. branches are entitled to exercise The also independence, powers powers other not the with their own legiti- funding have unit and the trial court branches. Both the local responsibilities relating operation mate to the of the courts trial directly the that derive from constitution laws. 3. The constitutional does not inhibit experimentation addressing subject in and innovation matters regarding possess responsi- intersecting which branches different only requires relationship It bilities. that whatever is does devised impinge any by not on the constitutional function of branch allowing powers. another branch exercise its County designation Wayne 593a(3) 4. The in subsection the “employer,” judiciary by face, impinge on does on its not the ena- bling usurp Whether, the branch the function. practice, judiciary’s impinge in a local will the unit on constitu- provision ripe currently tional functions virtue of this is not for adjudication. concerning constitutionality Questions 5. the of subsections ripe adjudication. 593a(4) (5) and are not for adoption provisions major- § 6. for the But the 593a that the ity down, strikes it is at all not certain that remainder of Act adopted present 374 would have been form all. its or at majority adequately severability has not addressed the issue. pera. 7. Section 593a is not inconsistent part 8. The order in No. Docket 201850 and of the order in determining No. Docket that Act violates the Headlee part Amendment should be reversed. The Docket order in finding Separation No. 201852 Act 374 that violates of Powers part finding Clause should be reversed the order pera Act 374 does not violate the should be affirmed. — 1. Constitutional Law Headlee Amendment. pro- guarantees

The Headlee Amendment will the state not reduce its portion necessary existing costs of activities or services entirely necessary pay state will for costs when it man- dates new activities or or extent services the state increases activity existing service; the level of an or increased of local levels spending other attributable to causes are not addressed (Const 29). amendment — 2. CONSTITUTIONALLAW HEADLEEAMENDMENT. necessary comparison

The formulation to make the between state aid provided during year (1978) the Headlee Amendment base and a year challenged comparing later in which involves required activity necessary total ratio of state aid for a to total activity required costs for the 1978 with ratio of aid to state government activity an individual local unit of to the neces- sary year activity challenged of that costs unit for the in the Detroit formulation, obligated funding; afford this the state is to under proportion providing activity of each or service same unit provided (Const funding in 1978 that the state on a statewide basis 9, 29). § art Funding — — — 3. Constitutional Headlee Trial Law Amendment Court 1996PA 374. government law mandated units of fund the State in 1978 that local operated courts; and trial local units financed and the circuit portion state a salaries district courts and the subsidized new for local 1996 PA 374 does not mandate activities comparison not the state in and does units vis-á-vis any units, although activity required level of of local increase the may particular required Act 374 finance activi- local units units; previously does ties financed other local where Act 374 necessary proportion costs of trial not reduce the state-financed operations to local Headlee violation court units no Amendment 9, 29). (Const § occurs art — — 1996 PA 374. 4. Constitutional Separation Powers Law provisions creating coemployment § 593a of PA 374 a The provid- relationship and between local units and courts authority ing sharing court violates the for the over Separation 593a(3), (5), (6), Clause; (4), and of Powers subsections stricken; (8) Separation of Powers Clause and must be violate the 593a(7) (9) and and not violate the constitution subsections do stricken; (11), (12), 593a(10), subsections need not be intent of by merely deleting (13) and still be effectuated the references can striking 593a(3) provisions without the rest to subsection those subsections; provisions § the stricken of 593a are severa- those need not down ble from Act 374 and entire act be struck 3, 2). (Const 1963, — 5. CONSTTTUnONAL LAW — SEPARATION POWERS JUDICIAL POWERS. OF adjudicative pos- judiciary, powers, in addition to its traditional authority powers necessary sesses to exercise its inherent all the government; inherent branch of a circuit court has the coordinate operations; power manage inherent and all its a court’s exclusive person- manage all administrative include the affecting employees working within nel its branch matters government. A. City Department (by Phyllis Law of Detroit Stafford, James, Corporation Counsel, Joanne D. A. Corporation Counsel, and Dennis Chief Assistant Opinion of Court Principal Corporation Counsel), Mazurek, Assistant Wright, Dickinson, Moon, and VanDusen & Freeman Joseph (by H. C. Ellsworth, Marshall, III, Peter mayor Jeffery Stuckey), city V for the City Detroit. Gregory, Moore, Jeakle, Heinen, Brooks, Ellison & (by Heinen), P.C. Mark L. for Government Admin- istrators Association. Attorneys R. Franklin,

Lee the Judicial Association. Kelley, Attorney

Frank J. General, Thomas L. Casey, Solicitor and A. General, Devine, Deborah Margaret Gary Bartindale, P. and Gordon, Thomas Attorneys C. Nelson, Assistant for General, the state Michigan, Department Management of Budget, and Michigan,

the Governor of the state of and Attorney General. Corporation M. Granholm, Counsel, Wil- Jennifer Deputy Corporation S. Noakes, liam Counsel, and Wayne C. John Burchett and W. Jarrett, Hametha for County Wayne County and Board of Commissioners.

Before: P.J., and McDonald and Fitzger Markman, ald, JJ. present challenges J. These cases three

McDonald, to 1996 PA 374.1 Plaintiffs first that contend Act 1 Significant purposes appeals of Act 374 features of these merges that it abolishes Detroit Recorder’s Court and it with the Wayne (Third Court); Circuit Court Circuit it mandates local unit funding courts, newly including for the merged district and circuit Court; Third Circuit Court and the 36th it District and that outlines a rela tionship funding respect between local units the courts with employees serving According preamble, in the court. to its Act 374 is Detroit Opinion of the Court Headlee (the art 25 and 29 1963, 9, §§ Const

violates that Act 374 next contend Plaintiffs Amendments). Separation of 3, art 1963, (the § violates Const that Act Finally, plaintiffs contend Clause). Powers act employment relations public 374 violates seq. 17.455(1) MSA el seq.] 423.201 et MCL (pera), violated both the held that Act 374 The circuit court Separation of Powers Amendment and the Headlee vio that it did not 3, 2, art but Clause, § Const part.3 in part and reverse pera. We affirm late the Detroit’s presents city No. 201850 Docket city of Act 374 that the requirement challenge Plaintiffs, the 36th District Court. fully fund city commenced Detroit, mayor of Detroit declaratory provisions ruling this action for to the transfer of pertaining Act 374 city of District Court to the responsibility for the 36th Amendment, Const violate the Headlee requirements contained 29, and the notice and MCL 5.3194(608)(2) MSA 21.238(2); MCL Legisla- because the 5.3194(605)(2)4 MSA 21.235(2); jurisdiction designed organization courts. House to revise the Analysis, 5158, July 29, 1996, Legislative Act 374 is inter HB states that response “perceived inequity of trial courts” of the state alia a to system.” “standardizing state and an effort at the court 2 provision generally specifically a set forth in 25. Section 29 effects 3 regarding challenges Act have been raised We are aware that other Voting Rights 374, including relating the federal by Act and the con those to stitutionality Wayne judges procedures which Circuit Court of the issues, only appealed designated. those the We do not address these but instant matter. any previously course, is with this or Of if 1996 PA 374 inconsistent alone, not, statute, invalid. is on that account then Act 374 enacted by implica repeal Rather, a of such other statute Act 374 would effect Comm, 349 Mich Rd Comm’rs v Public Service tion. Washtenaw Co Lapeer (1957); Bd v Co Antrim Co Social 85 NW2d 134 Welfare 224, 228; Bd, This notion is 50 NW2d 769 332 Mich Social Welfare irrepealable corollary principle Legislature enact that one cannot Opinion of the Court appropriation pay ture not make did an sufficient to activity required increase in the an or service city. granted plaintiffs’ the circuit court motion summary disposition. for gan Defendants, state of Michi- Department Management Budget

and and (collectively state), appeal right as trial grant plaintiffs’ summary court’s disposition. motion for presents challenges by Docket No. 201852 defend- ants/cross-plaintiffs Wayne County Wayne County by plaintiffs Board of Commissioners and Attorneys Judicial Association and Government (jaa) (the Administrators Association collective bar- (gaa) representatives gaining Wayne Circuit Court and the Detroit Recorder’s Court) to dissolution of the Detroit Recorder’s consequent merger Wayne Court and its with the Cir- (Third Court). cuit Court Circuit The circuit court provisions pertaining that the declared Act Wayne including making Court, Recorder’s those County employer employees working in the transferring funding Recorder’s Court and those obli- gations Wayne County, violate the Headlee Amend- §§ ments, Const 25 and 29. Defend- Michigan, ants/cross-defendants state of the Gover- Attorney (collectively state) nor, General appeal right summary disposi- granting an order cross-plaintiffs Wayne County Wayne tion County Wayne (collectively Board of Commissioners County).

legislation power concerning or restrict its own or that of its successors Wayne repeal Auditors, or amendment of statutes. Atlas v Co Bd of 596, 599; (1937). Accordingly, any 275 NW 507 based contention rejected. on another statute v 395

Opinion of Court 201852, No. In Docket circuit court also state enjoined enforcing from Act 374 Wayne County coemployer extent that it makes of members, finding JAAand GAA that a sharing author- ity employment over gov- matters two branches of Separation ernment violates the Clause, Powers 3, 2. appeals Const The state this as order right. The JAAand the GAA appeal also cross as of right, challenging the court’s determination that coemployment provisions of Act 374 did not violate pera. appeals were consolidated.

Regarding the two constitutional challenges, we mindful that “under established rules of con- statutory struction, presumed statutes are constitutional, duty courts have a to construe a statute as constitu- unconstitutionality clearly tional unless apparent.” Mahaffey Attorney General, v 222 App 325, 344; Mich 564 NW2d 104 To make a (1997). successful facial challenge constitutionality a statute, plaintiffs attempt here, must challenger establish “ ‘no set of circumstances exists under which the ” Organizations would be valid.’ Council & [a]ct Others Ed About Governor, Parochiaid v 455 557, 568, Mich 602; 566 NW2d 208 (1997), quoting United States v 481 US S Salerno, 745; 107 Ct 2095; constitutionality 95 L 2d 697 (1987). Ed “The question a statute is a lawof that this Court reviews Dep’t Corrections, de novo.” 222 App Blank Mich 385, 392; 564 NW2d (1997). Whether Act 374 vio- statutory a question lates the PERA, interpretation, question is also a of law that this Court reviews de Lafayette In Towers, App novo. re NW2d [Max 228

Opinion of the Court

I analysis begin Amend- with the Headlee We our principal challenge. Amendment The Headlee ment § provision 29, which Const at issue is states: hereby prohibited reducing the state from The state any necessary existing proportion of costs

financed by activity required of units of Local Government or service activity or an increase in the A new or service state law. beyond required by any activity or service level of any required by legislature existing or law shall not be Government, agency Local unless a state state of units of pay appropriation the unit of is made and disbursed to any necessary increased costs. The Local Government for provision apply shall not to costs incurred of this section pursuant VI, Article Section 18. provision prohibits this reduc-

The first sentence of necessary proportion costs with tion of the state respect activi- the continuation of state-mandated requires or services. The second sentence ties newly any necessary fund additional costs of state to or services and increases mandated activities activities or services from the 1978base level of such year. guarantee language This does not that local spending the 1978 units’ levels will not increase from only guaran- Headlee Amendment Rather, level. proportion will not reduce its tees that the state necessary existing services, costs of activities or necessary pay entirely will costs and that the state it mandates new activities or services or to the when existing the state increases the level of an extent activity spending or Increased levels of local service. e.g., causes, attributable to other inflation or the public, greater program of a are not utilization Opinion of Court provision addressed this the Headlee Amendment. Michigan Supreme interpreted Court has 29§

“to ‘reflect an on the part effort the voters to fore any attempt stall by the shift Legislature to [fiscal] responsibilities to the local . . government . Dep’t Ed, Schmidt v 236, 250; 490 NW2d 584 (1992), Durant v State quoting Ed, Bd Mich 364, 381 NW2d 662 (1985). The two together sentences “must be read ‘[b]ecause they aimed possible were at alleviation two mani Schmidt, festations same voter concern ....’” supra quoting supra at To Durant, 379. make necessary comparison aid provided between state during year the Headlee Amendment base (1978) year a later at issue, the Schmidt Court at considered, length, possible three formulations: the “state-to- state” formulation, the “local-to-local” formulation, .5 ultimately and the “state-to-local” formulation It adopted the “state-to-local” formulation.6 This method 5 regarding These methods differ whether total or state aid state aid to particular comparing activity in a local unit is state used aid for an in 1978 activity year to state aid the for in the at issue. Under the “state-to-state” method, compared the total state aid in 1978 is with the total state in aid year issue; method, particu the at under the “local-to-local” aid to a state compared particular lar unit in 1978 with state aid local in unit year issue; method, the at the under “state-to-local” total state in aid compared particular year 1978 is with state aid to the unit in at issue. Schmidt, supra apparently adopted at 248-249. Chief Justice Cavanagh approach dissent, 264-283, “state-to-state” (with in his id. while Justice Levin concurring) apparently adopted Riley Justice the “local-to-local” approach dissent, in his id. at 284-314. 6 rejected The Schmidt Court’s two discussion of the methods it —the are, “state-to-state” the “local-to-local” because of the com methods — plexity analysis, inadvertently quoted context, sometimes out of leaving impression regarding holding. example, an erroneous its For in quoted Docket No. rejection court circuit from the Schmidt Court’s erroneously of the “state-to-state” method and concluded from city language funding (the Detroit) a this that shift from local unit one

Opinion Court aid for a ratio of total state “the comparing involves necessary costs for the activity to total required ratio of year . . . with the activity in the base required for government unit of individual local aid to an state necessary that unit for the costs of activity to the Schmidt, funding.” activity year challenged in the state is formulation, 249. Under this supra at “[t]he activity or providing each unit to afford obligated that the state proportion service the same year in that basis provided on a statewide see also was ratified.” Id. at Amendment Headlee 566 NW2d 272 175, 187; Michigan, Durant v ).7 (1997 County) implicated (Wayne Amendment. the Headlee another local unit incorrectly, judgment, on whether the in our focused The circuit court funding previously “making up,” compensating for, or the loss state was by city provided to determine This was not the correct test of Detroit. Rather, as stated Amendment violation here. whether there was Headlee only above, guarantees the state will not Amendment the Headlee necessary existing proportion activities from costs of reduce its pay provided and that the state will on a statewide basis necessary new activities or increases costs when it mandates increased activity. may significant political existing of an While there be the level implications any by Legislature one to redirect funds from decision another, government that such decisions unit we do not believe local contemplation properly of the Headlee Amendment within the they attempting its own in the state’s to circumvent because do not result spending by shifting aggregate spending to other amounts of constraints government. Amendment was not Section 29 of the Headlee units processes government, political designed generally substitute for the by factions, interests, or entities that can which there are sometimes “losers,” merely against to secure one as “winners” or but characterized placed limitations which the state could avoid the fiscal obvious means upon provisions of the amendment. it other thus is not averse to the idea that the state The Headlee Amendment units, might provide of assistance to local choose to uniform amounts year year though during base or a later one even the Headlee Amendment greater proportion might a of assistance or more local units have received pro Consider, example, a situation in which the state than other units. for subsidy particular special unit in 1978 so that it vided a for a local percent financing (while units state all other received one hundred Schmidt, fifty percent funding.) local unit would not Under received Detroit Opinion op the Court supra Schmidt, In the Court discussed the ratifying voters’ intent in the Headlee Amendment: The state-to-local formulation satisfies voters’ intent enacting Headlee Amendment. When the voters rati- Amendment, they sought to fied the Headlee ensure that provided program, when the state mandates funds are to pay program. government the local for that The state-to- calculating obligation local method of the state’s achieves funding to secure a minimum level of voters’ desire mandatory government programs the local unit for and to mandating programs necessity link with the for tax- pay ing programs. approach for those also This creates appropriate balance between the desire state’s for dis- allocating cretion in funds and the desire local units government funding. for minimum The state-to-local ratio provides mandatory a uniform allocation of resources for programs. supplement is free to The state that minimum perception need, of its on the basis but the local government guaranteed proportionate its share. analyze

To the Headlee Amendment challenge, we must first determine what “activity the relevant or service” is here. The has Legislature defined these s:8 terms as follow guaranteed percent financing by one hundred state the Headlee Amendment, guaranteed only funding propor- would be rather it the state provided (i.e., greater tion on a statewide basis in an amount than fifty percent percent depending upon than one and less hundred the size receiving special subsidy). agree of the local unit We do not plaintiffs Wayne city County Headlee Amendment requires preference, unit, that a state once to a local extended be forever maintained. statutory cognizant We are such definitions of constitutional lan guage, respectful consideration, although binding entitled are not only unless and to the extent that the definitions are consistent by applying principles with the result achieved established of constitu Durant, supra, interpretive tional law to the same task. 424 Mich 392. We particular conclude that these statutes are correct their construction of language the constitutional at issue. 386 Opinion of the Court “Activity” specific means a and identifiable administrative provision government. The of a ben- action of a local unit of for, protection of, public of a local efit or the government unit of is not an administrative action. [MCL 21.232(1); 5.3194(602)(1).] MSA specific program and identifiable of a

“Service” means government general local unit of which is available to the public provided or is for the citizens of the local unit of provision for, protec- government. The of a benefit or the of, public employees government tion of a local unit of program. 21.234(1); 5.3194(604)(1).] not a MSA [MCL “activity any If an or service” is defined narrowly, too programmatic change might appear minute to be a activity requiring appropriation “new” or service state However, “activity of the entire cost.9 if an or service” broadly, is defined too even a substantial shift in bur- appear den from the state to local units might merely existing activity the continuation of an or service.10

Const states: judicial power exclusively of the state is vested justice one court of which shall be divided into one supreme court, appeals, gen- one court of one trial court of jurisdiction court, probate eral known as the circuit one court, jurisdiction legislature and courts of limited that the example, during argument, plaintiffs sug For oral one counsel for gested provision substituting obligation that a state law an that local units photocopies recordkeeping previous obliga maintain of some matter for a copies, might require tion that it maintain carbon weE Headlee Amend compensation activity. ment as a “new” example, joining purposes together, For of Headlee Amendment analysis, services, poEce services, state assistance to local units for court jail part appear services as of the “law enforcement” function would “activity defining to undermine the Headlee Amendment or service” in excessively an broad manner. Opinion of the Court

may establish a two-thirds vote of the members elected serving to and in each house. provision

This suggests that jus- the “one court of tice” is the basic, organic unit branch government; of state therefore, operation of this appear unit would to be the appropriate “activity or (hereinafter service” activity) purposes for of Headlee analysis.11 Amendment However, only the trial-level subject courts are to local funding as discussed below. Because the Headlee Amendment focuses on state-mandated activities requiring local funding, only the trial-level courts of the justice” “one court of raise potential 29 violations. § To include the entire “one justice” court of as activity the relevant would be over-inclusive because the Court Appeals Supreme Court, unlike the trial-level courts, are not locally Further, funded. such a broad description of the relevant activity would permit the state to man- date that local begin units funding appellate-level courts without it to be a appearing activity “new” because the local portions units funded other “one justice” court of in 1978—an illogical result. we Accordingly, believe that the best accommodation of the “one justice” court of provision of the constitu- tion and the Headlee Amendment is to describe the activity relevant operation of trial courts. 11 provision dictating This constitutional the various courts be justice” distinguishes operation viewed as “one court of of the court system from, example, operation system. of the educational See

Durant, supra, 388, education, whole, 424 Mich which concludes that as a “activity purposes. is not an or service” for Headlee Amendment We con provision only scope sider this constitutional to determine the of the rele activity here, existing vant not to determine what the “state law” is for purposes of the Headlee Amendment. 386 402 Opinion of the Court comparison operation A trial courts under (the Act and as mandated in 1978 Headlee necessary year) Amendment base to determine whether activities, Act 374 mandates new increases merely existing existing activities, or continues activi- “[T]he law,’ ties. term ‘state as used in Const 1963, agency 29, means state statutes and state rules.” 9, § supra, Durant, Mich 387. Act 9931 abol- 374, § merges ishes the Recorder’s Court12and it with the Third Circuit Court effective October 1997. Act 1, 374, requires county board of commissioners in § county annually appropriate each operation funds for the county.

of the circuit court in that Act 374, requires pay salary § 555 the state to of circuit judges county pays and to reimburse the if it an addi- salary prescribed tional within limitations. Act requires body governing of each district § funding annually appropriate unit to funds for the operation of the district court in that district. Act requires 8104 also district units to finance § operate the district courts. Act requires pay salary judges the state to of district pays and to reimburse the local unit if it an additional salary prescribed Accordingly, within limitations. pay under Act the state mandates that counties operation for the of the courts, circuit that district pay operation units for the of the district courts, pay judi- that the state circuit court and district court cial salaries. 12 unique The Recorder’s is a Court court to Detroit. It is “a court of jurisdiction jurisdiction prosecution

limited and has for the of crimes City only.” People Young (On Remand), committed within the of Detroit v App 420, 433; (1996). every county 220 Mich 559 NW2d 670 In other in Michigan, city prosecuted crimes committed within a in the circuit court. v

Opinion of the Court analysis requires A Amendment Headlee next with the compare operation we this of trial courts In Grand year. 1978—the Headlee Amendment base Michigan, Traverse Co v 450 Mich 457, 473-474; Michigan Supreme NW2d 1 Court stated: (1995), Despite always the fact the courts have been they operated regarded part government, of state have historically on local funds and resources. An unbroken line years practice stretching recognizes of cases back 130 imposing operating the costs of the courts on local fund- ing units. stated, widespread acceptance princi-

It “[t]he ple expenses through most trial court local funding Id. today.” units has continued until 476. Wayne Judges Wayne Co, Circuit See also 15 Mich App 713, 722, 10; n 167 NW2d 337 rev’d (1969), county 10, 24; (1969) (“the Mich 172 NW2d 436 is the upon arm which the nec- proper government of state essary expense circuit operating court opinion superseded of the Court and the devolves”), opinion by adopted opin- and Black as the Dethmers opinion ion the Court on rehearing, affirmed Appeals Court of NW2d 228 Presque Judge, In Frederick v Isle Co Circuit 1, 6; (1991), 476 NW2d 142 the Court stated: Traditionally, county primary has been the unit justice system. directing Michigan’s criminal county “[Jjudicial along circuits are drawn lines and required by expenses statute to bear the counties are QMCL 27A.551), facilities MSA certain courtroom 600.551] [repealed] QMCL court commissioner salaries circuit 27A.1067), stenographer’s QMCL MSA salaries 600.1067] 404 228

Opinion of the Court 27A.1114), juror’s compensation ([MCL MSA 600.1114] attorneys appointed 27A.1231), MSA and fees for 600.1231] by persons procure the court to defend who cannot counsel [OAG, ([MCL 28.1253).” for themselves MSA 1967- 775.16] 49, 12, 4,588, pp (June 1967).] No appli- following See also the versions of the statutes (allowing 600.555; cable 1978:MCL MSA27A.555 pay judges salary), counties to circuit an additional (mandating 600.1471; and MCL MSA 27A.1471 compensation judges fix the of law within clerks appropriated by unit). funding Regard- sum the local ing courts, the district 600.8104; the version of MCL applicable required MSA 27A.8104 in 1978 district operate units finance and the district courts. In Employees Judge & the Second Dist Judicial v Co, Court Hillsdale NW2d (1985), the Court stated that 600.9947; MCL MSA attempt 27A.9947, added 1980 PA anwas funding the state to eliminate local of state clearly recognizes functions. Second Dist Court thus effectively that, before that 1980 act, the state man- funding operations. dated local of trial court particular Before Act 374 there was no statute that explicitly responsible stated that local units were funding Rather, trial courts. above, set forth particular addressing aspects number statutes operations clearly implied trial court local units were to fund trial courts. The mosaic these various strong statutes, and the tradition of local recognized trial courts law, case demonstrates that effectively law state mandated that local units fund Opinion of the Court conclude that we Accordingly, in 1978.13 courts trial fund trial local units law mandated that state in 1978 implication clear ignore If one were courts. would be to con- only alternative statutes, these local did not mandate “state law” clude that operation the entire result, in as a courts of trial which activity for would be a “new” trial courts percent hundred provide one must now the state this to be the parties suggested None of the financing. it to be so. we do not believe case and records complete financial contends that The state period are not Amendment pre-Headlee from undisputed that apparently however, it is available; operations court only contribution to trial the state’s judicial sala- respect portion to a in 1978 was financed and in 1978 local units Accordingly, ries. and the state the circuit and district courts operated a salaries. portion subsidized analogized the state During argument, oral and described the pie of trial courts to a operation operations in 1978 to that comparison of trial court adjustments among the mandated under Act 374 as they responsi- in the slices for which local units piece pie. taking bigger with the state ble, accurately in our describes analogy, judgment, This mandates new comparison. in Act 374 Nothing compari- in units vis-a-vis the state activities for local the level of with 1978. Nor does Act 374 increase son Particular local any activity required of local units. may previously activities units, however, financing be Wayne County’s by other local units (e.g., financed law,” the Durant Court considered determining We note that in “state operation. control over school the well-established tradition of local Durant, n 14. 424 Mich [Max

Opinion of the Court being required Court, to finance the Recorder’s for- merly part city Detroit). Also, financed particular may units financing that, local activities were financed state. The Headlee after directly does not Amendment address state mandates that result in shifts among local units or reductions post-1978 particular subsidies units; state local it only guarantees that each local unit will receive the same proportion funding provided of state aon state- year wide basis in the base of 1978.14Act 374 accord- ingly activities, continues existing opposed man- dating new activities increasing or the level of existing Therefore, only activities. the remaining issue is whether Act 374 the pro- reduces state-financed 14Although dispositive, not we that the note Headlee Amendment was designated incorporated exclusively to in be art IX of the 1963 constitu However, VII, tion. Art IX is entitled “Finance and Taxation.” art “Local Government,” legislative authority regulate, the article that limits command, municipal counties, or otherwise intrude into the affairs of cit ies, villages, metropolitan governments and authorities. If the Headlee directly explicitly power Amendments were intended to the delimit of Legislature municipal affairs, Secretary over then the of State was obligated apprise parts might voters that art VH of be “altered or abro gated.” 1963, 12, 2; Ferency State, Secretary Const v of 569, 592-595; date, 297 NW2d 544 To the Headlee Amendment has only erecting against legislative been as construed a financial barrier crea municipal obligations tion of new in terms activities or services and against legislature’s shifting responsibility existing the financial government. Nothing activities or services from the state local in the entirely separate Headlee Amendment addresses the issue transfers of responsibility among governments, long financial between or local as pro-rata thereby the state’s share of such to each costs local unit is not Further, reduced or diminished. when a Headlee Amendment violation occurs, remedy judicial abrogation statute; rather, is not properly Legislature, matter returns to the which must whether to decide forgo finance the with mandate state or instead to mandate. Durant, supra, remedy (holding 456 Mich 203-206 that the usual for a declaratory relief, Headlee Amendment violation will be after which the Legislature mandate, activity either must abolish the fund in accor dictates, liability dance with the Headlee Amendment’s or create a state underfunding). for continued Opinion of the Court opera- of trial court necessary costs

portion on a provided at issue from that to the units tions only in In the state’s con- basis 1978. statewide por- was operations financing to trial court tribution pro- Thus, salaries. the state-financed judicial tion of may expressed in be as: portion portion judicial state salames on a statewide basis dollar amount of sfpi = operations necessary of trial court on a statewide basis total costs may under Act 374 proportion The state-financed expressed as: percent in unit at dollar amount one hundred salaries issue15

SFP2= necessary operations in unit at total costs of trial court issue becomes remaining whether, The issue therefore still providing under Act state is least that proportion necessary same of the total costs of trial operations provided court to the units at issue as it is, on a statewide basis 1978—that whether SFP2 issue, Wayne County with to the local units at regard city Detroit, equal is at least to SFPl. parties provided pre have not the numbers needed to cisely or, respect calculate SFPl to these two units, However, they provided have information SFP2. the numerators of SFPl and SFP2. regarding Regarding judicial salaries, operations the one item of trial court to which the state contributed Act 374 requires percent the state to finance one hundred judicial units, salaries to all local whereas the state only “portion” of in financed some those salaries Thus, clearly 1978. the state has increased its funding only operations of trial proportion of the item court 15 purposes discussion, pro will For of this we not consider the funds Equity with vided the Court Fund and the Hold Harmless Fund. Even sfp2 funds, out consideration of these we are convinced that is at least sfpi equal respect to with to the local units at issue.

Opinion of the Court relatively to which it contributes. If we assume a sta relationship ble judicial between salaries and total necessary operations, costs trial court must SPF2 equal be at least to SPFl because state has proportionate judicial increased its contribution to salaries Act 374.16Accordingly, we conclude that Act 374 not does reduce the propor state-financed necessary tion of trial costs of court operations to either units of the at issue from that provided on a statewide in basis 1978. For these find reasons, we no Headlee Amendment in violation Act 374.17

n Next, we address the separation issue. The state the trial argues court erred in determining judicial recognize large proportion We that if salaries constituted a necessary operation expenses the presently costs overall trial in court 1978 and only necessary proportion costs, constituted a small of those conceivably reducing proportion necessary state could its costs operations despite of trial court that it fact has increased its contribu judicial However, tion to salaries. we have no reason to this believe to be case; plaintiffs, proof regard the issue, and who have the burden of with to this provide demonstrating Spe have failed evidence such a situation. cifically, any change we are unaware of structural dramatic in the ratio of support personnel judge during or infrastructure costs for each this period might proportion result in a in the decrease state of “neces sary” expenses despite trial court the increase the state’s contribution salaries. recognize city We that the financial burdens on the Detroit Wayne County operations substantially trial for court heavier than they year were in the Headlee Amendment base 1978 or in when greater portion funding the state undertook subsidize a for local Wayne County. However, courts in the same is true for all Again, already respect noted, local units across the state. as to con tinuing activities, long any as increased burden on a unit is local not a reducing proportion pro funding function of the state’s its from impli vided on a statewide basis Headlee Amendment not greater any cated. Plaintiffs are afforded no insulation than other local rising providing public merely unit from the costs of services because the provide period state undertook to them with subsidies for a dur ing generally everyone. rising which costs were Michigan 409 v

Opinion of the Court local relationship between coemployment by Act 374 vio- units and the courts created funding Clause, 1963, Powers Const art Separation lates the of provisions of Act 2. The trial court found that the 3, § for the over court 374, sharing 593a § Clause Separation violate the of Powers “disrupts the delicate bal- relationship because this judiciary’s to control its right ance between county’s responsibility to fund the employees and potential overreaching court” and “creates the trial court’s conclu- County.”18 agree We with the Separation relationship sion that the violates Powers Clause.19 2 1963, 3, provides:

Const § powers government are divided into three judicial. person legislative, executive and No branches: powers exercising of one branch shall exercise except expressly properly belonging to another branch provided in this constitution. the three branches powers among

This preserve indepen- government designed is 18 large part Judges Probate The trial court relied on Berrien Co Michigan 25, AFL-CIO, App 205; AFSCME Council 217 Mich 550 NW2d however, Michigan Supreme subsequently (1996); Court ordered opinion precedential that this shall “have no force or effect.” 454 Mich 906 (1997). jaa gaa plaintiffs challenged the consti We note that below also tutionality 374, 591(1), provides Act which that a local unit annually operation “by appropriate line- shall funds for of its circuit court appeal. lump-sum budget.” How item or This issue has not been raised on ever, validity provision questionable light we that the of this note prohibits holding Separation decisions that the of Powers Clause the use operation appropriations branch for of line-item App Judge, 156 Mich courts. See Ottawa Co Controller v Ottawa Probate 594, 604-606; (1986); Judges Judicial Dist v 401 NW2d 869 the 74th Bay Co, 710, 726-727; (1971). 385 Mich 190 NW2d 219

Opinion of Court dence of each branch. In 1976 PA re 255 NW2d 635 supra In Court, Second Dist

Supreme explained: Court government power pre- branch

Each of has inherent to authority. serve its constitutional certainly any department,

“It was never intended that one through acknowledged powers, the of its exercise should be prevent department fulfilling able to another from its responsibilities people under the Constitution.” [O’Coin’s, Treasurer, 507, 511; Inc v Worcester Co 362 Mass (1972).] 287 NE2d 608 However, indispensable ingredient concept an of coequal government of branches is that branch “each must recognize respect authority the on limits its own authority delegated

the boundaries the of to the other 228; Will, 200, branches.” States v 449 United US 101 S Ct (1980). 66 L Ed 2d 392 separation powers The doctrine of of “has never been interpreted Michigan meaning as can there never any overlapping of functions between branches or no control one branch over the acts another.” People Trinity, v 189 19, 22-23; Mich 471 NW2d (1991), Soap Detergent citing & Ass’n v Natural Resources Comm, 728, 752; 330 NW2d 346 (1982). Michigan adopted Instead, has the view of the powers doctrine that James Madison “ expressed in The Federalist No. 47: ‘[W]here the power department whole of one is exercised the possess power same hands which the whole department, principles another the fundamental a ” Soap Detergent free constitution are & subverted.’ supra (emphasis original). Ass’n, at 752 Accord- ingly, overlap govern- some of the three branches of permitted, only ment is but where the area of one Michigan v

Opinion Court very power branch’s exercise of another branch’s specific. Trinity, supra 23. limited and relationship between in this is the At issue case judicial (the county) legislative branch branch court). (the whether In order determine trial Separa- provisions challenged violate the Act 374 by allowing tion of Powers Clause powers judiciary, it is nec- branch to invade the judicial essary powers branch. to examine the exclusively judicial power is vested of the state justice 1. . . . .” in “one court of Const power is the within Included apply to what law is and it decide determine Freight parties. rights Bros Johnson Kramer 257; NW2d Lines, Inc, 357 Mich adjudicative powers, In addition to such traditional Supreme long recognized Court has authority necessary judiciary possesses “all the govern- a coordinate branch of exercise its supra Gray Clerk ment.” In re 1976 PA at 588, 595; Mich Court, Common Pleas judici- power NW2d 411 This inherent the ary preserving recognized to the has been as essential Wayne independence judicial branch. Circuit the supra Judges, supra, Gray, In 9-10; at 595. Mich supra 734, Jus- Court, her in Second Dist at dissent judici- power tice described the inherent Riley judicial ary authority mat- as not that “does deal [but to administration of instead] ters relates supra PA In In re 1976 business of court.” powers when 663, the Court included administrative judicial powers, stating: describing the nature of judicial powers from the Constitution include derived powers supervisory rulemaking, and other administrative 228 Opinion of the Court They adjudicative well as traditional ones. have been exclu- sively judiciary by entrusted to the the Constitution and may diminished, by, not exercised nor interfered with government the other branches of without constitutional authorization.

Administrative in In managerial nature. order carry adjudicative out its stated powers, judiciary, and likewise legislative and executive branches, authority must have inherent to manage operations of its apt description branch. An need power superseded for this origi- found nal opinion of the Wayne Court Judges, Circuit supra, There, 383 Mich 20-21. the Court stated: imperfection

It is the gives of human institutions which power. simply impossible rise to our notion of inherent It is judge nothing judge; for a do legislator but a to do noth- ing legislate; governor nothing but to do but execute the proper laws. The great pow- exercise of each of these three government necessarily ers of ancillary includes some capacity things normally inherent to do which are done departments. the other

Thus, department legislative both the department housekeeping have certain chores which are prerequisite judicial power. to the exercise of And, accomplish housekeeping depart- these chores both inherently ments have a measure of administrative primarily exclusively not unlike that vested in the exec- department. utive

Finally, we note that Supreme Court’s recent 1997-6, Administrative Order No. which commented on power implications of Act 374 and set forth guidelines for its implementation, is con- sistent with recognition our judiciary pos- that the managerial powers: sesses such

Opinion the of Court requires powers that the principle separation of of responsibility aspects for all of and ultimate fundamental comí; personnel matters, operations, including resides trial principles judicial of modem Practical within the branch. similarly primary responsibility management advise the operations, including personnel matters, for trial court level, judge of with the chief the at the local should reside operation a management the of trial Effective of trial court. working court, however, requires positive a relation- also funding ship judges units of chief and the local between responsibility to of shared the courts in the exercise their responsibili- managerial public. protecting to the In addition prin- government, judiciary the of over its branch of ties the protects funding ciple powers units in of local appropria- responsibility: the their own area of fundamental responsibilities public separate the dollars. Given tion units, judiciary application the court’s powers principle operation separation of sepa- requires practical reconciliation of trial courts spheres legislative rate of the constitutional spheres intersect. branches where those all we hold the circuit reasons, For these court, jus- “one court of Michigan’s a division of tice,” possesses power the inherent and exclusive operations. Accordingly, determining all its manage provisions impermis- of Act 374 allow an whether the judiciary by intrusion into the sible branch, we must consider the effect of its this power on inherent the court provisions administer its business. Act envisioned Legislature

In 593a of if Wayne County Council, Judicial that either Wayne County timely Board Com- created Wayne County would missioners, or issue. subsections “employer” See 228 Opinion of the Court judicial and Because a council was 593a(2) (3).20 not created,21 “employer” the term as used 593a ref- Wayne County. ers default to Subsection 593a(4) Wayne “employer,” i.e., County, the certain grants authority that is to be exercised in concurrence with judge, the chief but not limited abil- including, to, the to ity agreements enter into collective bargaining employees’ representatives. the court Subsection the 593a(5) authority sets forth division of the impasse event of an the judge between chief and the county. pertinent portions The provide: of the statute Wayne

(3) county judicial If the council is not created pursuant employees (1), to subsection the of the former judicial serving state council in the circuit court in third the judicial city circuit or in the of recorder’s court the of employees county Wayne, Detroit shall of become of effective October 1996. (4) employer designated (3) (2) The under subsection or [Wayne County], judge in concurrence with the chief authority:

appropriate court, following has the policies

(a) personnel procedures, To establish and including, to, policies procedures but not limited and relat- ing compensation, fringe benefits, pensions, holidays, leave, schedules, discipline, grievances, personnel work records, probation, hiring practices. and termination purpose. provides: Section 593 Act 374 achieves this same It 1, 1996, employee Effective October each former state judicial serving judicial council in the circuit court in the third cir- Wayne county employee cuit shall an become coun- pursuant 593a, or, cil if that council is created to section if that created, employee county council is not shall an become Wayne. express opinion constitutionality regarding designating We no Wayne County timely (if created) Judicial Council it had been employer at issue. Opinion Court agree- (b) bargaining make and into collective To enter representatives employees. those ments with employer County] appropriate (5) [Wayne If the judge not concur the exercise of their chief able to' on any authority (4)(a), described in subsection as to matter authority employer or shall be exercised either judge as follows: chief employer authority policies (a) establish has the benefits, procedures compensation, fringe relating holidays, pensions, and leave. policies

(b) judge to establish The chief has schedules, procedures discipline, griev- relating and to work ances, personnel records, probation, hiring and termination practices, personnel and other matters not included sub- 600.593a(3), (4), (5); (a). and MSA 27A.593a division [MCL (3), (5).] (4), and relationship a view,

In statute creates our branch and the legislative (the county) between the judicial court) Separa- that violates the (the branch simply of allows too tion Powers Clause. statute inherent judiciary’s much interference manage operations. Although its internal authority may branch grant legislative of is cer- personnel matters, it it specific, i.e. concerns tainly not limited. outright is an takeover 593a(3)

Subsection employees employees, making them of court’s it is county. separation powers standpoint, a From solely one persons within working troubling employees of another branch regarded branch be managing personnel government.22 Employing 5158, July 29, Legislative Analysis, HB We House note that issue, stating: regarding precise this articulated concerns provide legislative government employees Having branch separation powers appears judicial branch to violate the

for the App Opinion of the Court carry day-to-day operations out is one of the most any gov- basic administrative functions of branch of already suggested pur- ernment. This Court has that, separation powers, suant to the doctrine of one government subject branch of should not be to over- sight by personnel another branch in matters. In Beadling v Governor, 106 530, 536; (1981), NW2d 269 this Court held that it would be a separation violation of the doctrine “if the judge compe- executive branch was allowed to tency employee discharged legislative of a branch and order reinstatement.” There, this Court employee Beadling observed that the at issue in held position sensitivity a that “was one of some within legislative process” oversight if executive dangerous were allowed it would “allow a incursion Surely usurpation into the realm.” Id. equally

all the court’s can be viewed as an dangerous incursion into the realm. Accord- ingly, 593a(3) we view subsection as a violation of the Separation of Powers Clause. 593a(4) equally

We find subsection to be offensive powers. provi- to the doctrine of This grants equal authority county sion establishing personnel policies proce- court in all 593a(4) goes beyond dures. giving Thus, subsection county input concerning economic issues or col- bargaining agreements, argua- lective issues that are legislative established gov- the constitution. branch of state provide ernment doesn’t employees, the executive branch with its provide nor legislature does the executive branch with its employees. Why judiciary? should this be so with the Judicial accountability requires judiciary that have control over its employees. Opinion of the Court county’s power appro- exclusive to bly related to the operation of the trial public dollars for the priate 1, 30-31. The Michi- See Const §§ court.23 have invoked the Court and this Court Supreme gan involving the court in cases power inherent employees its are ability to determine who judiciary’s employees. Gray, the salaries of its and to determine bailiffs and supra (holding at 595 remove “[t]o power is an inherent personnel court for cause other Judges Judicial Dist v 74th judiciary); Co, NW2d 219 Bay 710, 727; (1971) 385 Mich district courts rather finding that its that the (holding authority to set salaries was than the local units have “wholly judicial power with the inherent consonant” Circuit Livingston Livingston Judge, Co v doctrine); (1975) (extending 225 NW2d 352 Bay Co in the circuit holding serving v Ottawa Ottawa Co Controller probate courts); Judge, Probate App 594, 603; 401 NW2d 869 inher- probate that the court has the (1986) (holding for neces- ent to set “reasonable salaries its instance, in the first as it sary employees long appropriation”). its total We budget remains within inherent administrative now hold that court’s personnel all authority manage include the employees working matters within its affecting is that the 593a(4) branch. The effect of subsection inherent author- judicial branch is forced to share this may county’s power By recognizing that these issues be related to the they any appropriate suggest funds we do not mean to more of subject appropriate legislative with the court’s internal an interference merely point 593a(4) encompasses operations. We out that subsection comment, post the dissent’s more than these economic issues because of legitimate of the local that finances are “the concern unit.” Opinion of the Court ity manage to its with the power-sharing relationship branch. This is too much operations of an intrusion into internal the Separation court and is inconsistent of Pow- ers Clause. 593a(4)

While subsection offends constitution by allowing county to share the court’s inherent authority personnel and exclusive over all matters, 593a(5) subsection is inconsistent with the constitu- pow- managerial tion because it divides inherent judiciary county. ers of the between the court and the provision gives county authority This ultimate concerning relating all economic issues employees working again, within the court. Once we great view this as too anof intrusion into the internal operations Sep- of the court to be consistent with the Amongst powers desig- aration of Powers Clause. county power nated to the under this section is the procedures policies relating “establish com- pensation 600.593a(5)(a); . . . .” MCL MSA 27A.593a(5)(a). Supreme Michigan This Court and already long Court have ruled that as as the court budget appropriation, does not exceed its total it has authority per- inherent to determine the salaries of its Bay supra Livingston Co, sonnel. 726-727; at Co, supra supra at 272-273; Co, Ottawa at 603-604.We Bay realize at the time the Court decided Co and Livingston express statutory authority Co there was employ- for the circuit and district courts to set their Bay supra ees’ However, salaries. Co, at Court cited the doctrine inherent independent courts as an its basis for decision. More- supra over, in Ottawa Co, 603-604, this Court probate decided court had the Opinion the Court that, statutes the existence despite the salaries set authority to set the salaries face, granted their on of this county. light In certain of subsec- provision that we conclude authority, over ultimate control county granting 593a(5) tion del- an unconstitutional is personnel of court salaries power to inherent the court’s egation per- are sensitive issues Moreover, economic branch. functioning affect greatly can matters that sonnel compen- the level of only does Not the trial court. as an the court available to who is affect sation morale of affect it also can employee, but matters such other economic Likewise, work force. are sen- holidays, and leave benefits, pensions, fringe personnel. affecting court issues important and sitive over these have control to one branch Allowing another branch operations of internal aspects of the limited intrusion. as a be characterized cannot subsections we hold that reasons, For all these Clause of Powers Separation violate 593a(3)-(5) statutory provision is When a be stricken.24 and must regard- a determination unconstitutional, found to be rest of the statute severability from the its ing invalidity of whether question is required. The act be declared that the entire require an act parts of State, Secretary Pletz v unconstitutional. gov- The statute 336 NW2d 789 App 335, 374; 2.216, provides: 8.5; MCL MSA severability, erning the follow- of this state of the statutes In the construction observed, would such construction ing unless rules shall be similarly provisions Act 374 to that 593a is constructed We note specifically 591(4), litigation, §§ in the instant are not at issue 8271(6), 8274(5). Opinion of the Court legislature, be inconsistent with the manifest intent of the say: is to any portion application any If of an act or the thereof person or circumstances shall be found to be invalid a court, invalidity remaining portions such shall not affect the applications given or of the act can be which effect without application, provided portion remaining the invalid or such portions inoperable, not determined court be this end acts are declared to be severable. capable separate In “[t]o order enforcement, the portion independent valid of the statute must be complete forming the invalid sections, act within supra itself.” Pletz, at 375. The law after enforced an portion invalid of an act is severed must be “reasona- originally ble in view of the act as drafted.” Citizens Logical Responsible Alternatives & Environment v Clare Co Bd Comm’rs, (1995). 536 NW2d 286 One test to determine whether light original the law enforced is reasonable the body law-making act is “whether the would have passed portions the statute had it been aware that therein be and, would declared to be invalid, conse- quently, supra excised from the Pletz, act.” at 375. provisions we turn

First to the other within they may § 593ato determine whether be read and independently provisions. enforced of the stricken 593a(7) (9) Subsections and are not affected our striking 593a(3), (4), (5) of subsections and because provisions, judge’s these which address the chief option participate bargaining not to in collective and liability the state, can be read and enforced independently provisions. of the stricken However, 593a(6) (8) expressly depend subsections and on the relationship unconstitutional created between the county 593a(4) (5). and the court in subsections

Opinion Court provisions must be stricken. Sub- these Accordingly, to (13) refer (11), (12), 593a(10), sections under subsection employer designated appropriate explained, only already we or As have (2) analysis is our subsection provision relevant County provided Council Wayne Judicial because We timely created. have was not for in subsection 3 of the in subsection designation ruled persons within the county employer working Separation a of Powers is violation of court may appear glance, provisions At first these Clause. upon 593a(3) stricken subsection dependent too provi- these However, the clear intent of to stand. continuity of benefits provide is to sions longer employed by the former employees who no rights of protect State Judicial Council and to employees employer. their new This these vis-a-vis by merely deleting can ref- intent still effectuated provisions. pro- 3 in these erences subsection then that the would visions would ensure acquired under their former not lose benefits State Council. employer, the Judicial we of Act 374. The act Next turn to the remainder aims those comprehensive with numerous besides See portions in the of 593a. foot- § addressed stricken supra. Legisla- We see no indication that the note adopted 374 had it known would not have Act ture 593a from portions that this Court would excise provi- find the stricken act. we Accordingly, the no Act 374 and see of are severable from sions 593a If Legislature entire act. the to strike down the reason repeal conclusion, our it can the disagrees with the remaining provisions of act. 228 [Max

Opinion of the Court opinion complete Our would not be without dis- cussing position expresses the our colleague his First, dissenting dissent. we address our colleague’s provisions comments our of the regarding striking at facially agree issue as unconstitutional. We a success- constitutionality ful facial a challenge of statute establish no of must set circumstances exists act would be valid. Council Orga- which the under of supra nizations, at 568. the Although sug- dissent gests ways there are imple- several Act 374 could be mented that would not run afoul the constitution, of give any he does not examples of such circumstances. view, In our no set of circumstances exists under which the act would be valid. On its face act employees makes who employees were once employees county, court judiciary forces the share its power inherent of managing its internal operations with county, grants and then ultimate all concerning personnel economic issues to county.25 way We cannot envision a an such act implemented could be that would not invade the judiciary.26 domain of the post dissent, striking The n mischaracterizes our down provisions separation several of Act 374 as violative the constitutional potential overreaching by on basis local fund ing contrary, provisions represent overreaching unit. On the we hold the the local unit. example cites dissent the former State Judicial Council an sharing employees govern over control all three branches of why challenge

ment wonders these now the similar arrangement being pow under Act 374 as a violation of the provision arrangement ers of our constitution. The mere fact was suc Blank, supra. suggest cessful no evidence it was constitutional. See We objections the lack constitutional creation of the Judicial State fully funding operations participat Council was due to the state ing courts, relieving government local aof sizable financial burden. 1980 PA 1980 PA 440. When Act 374 shifted the financial burden back to government, present challenge local constitutional was filed. Michigan

Opinion of the Court argues also the issues dissenting colleague Our note the not for review.27 We ripe us are before ripeness doctrine. argue not raise or the parties did this if we were refuse decide We note that also we ripeness, of we believe issue the doctrine under in a needless inviting resulting litigation, would be resources.28 Moreo- judicial and waste although dissenting colleague interesting our claims It is to note that ripe review, for our he nonetheless concludes subsec the issues are not facially separation pow 593a(3) the tion does not violate constitutional particular nothing provisions on face of Act 374 or the ers and there is the likely by certain, not, or more than struck any us that makes it even down impaired. judicial will be function of the trial court discrete the local nor the trial courts have dissent notes that neither units grounds. challenged We on take the statute passed funding objecting to one unit has a resolution notice that at least No. Order 1997-6. Administrative Michigan Legislature adopted Act the of the State of Whereas, intended, part, an Act in relevant 374 of the Public Acts of relationship the trial courts of

re-define and re-order the between Michigan governmental primarily the the local units State of and courts; responsible trial and those establishing governmen- local Act 374 had the effect of Whereas, non-judicial employees “employer” trial tal status for unit necessary budgeting authority, among other line item courts and changes; and and beneficial August 18, L. on Honorable Conrad Mallet, Whereas, Jr., Supreme Court, issued Adminis- Chief Justice 1997-6, copy attached Exhibit No. of which is trative Order postulated the unconstitution- “A.” Order No. 1997-6 Administrative arbitrarily capriciously ality and and overturned of Act “employer status” reforms and “line-item substance of the budgeting” constituted the heart of reforms reforms which adopted in Act implementation of Administrative Order No. 1997-6 Whereas, Michigan legislature and the local the efforts of the will frustrate accountability, order, governmental bring and efficient units to system; to the trial court administration RESOLVED: NOW THEREFOREBE IT County 1) Board Commissioners indicates the Tuscola of negotiate That support an end dis- mediate and its for efforts to pute 1997- of Administrative Order No. occasioned the issuance entirety having goal in its that Order withdrawn 6 with the 228 Opinion op Court ripe in our ver, view, these issues are because the persons represented plaintiffs pres- jaa and GAA ently need of direction identity regarding employer. their Subsection divides 593a(4) loyalty former State Judicial Counsel between negotiate two masters and forces them to with two masters. We do find not such circumstances to be or hypothetical questions abstract ripe that are not for our review.

Finally, we comment the regarding implication throughout the dissent that our decision is somehow thwarting the Legislature intent the to create a cooperative relationship county between the and the

having given Act 374 of the Public Acts of 1996 and immediate full effect; and 2) County That the Tuscola Board Commissioners indicate willingness participate efforts, through its to these [sic] its representatives; authorized and 3) That, efforts, County with simultaneous such the Tuscola supports drafting adoption Board Commissioners and the of an Michigan, amendment to the 1963 Constitution of the State of implement operative provision which will the of Act and thereby implementation by assure its without interference the Michigan Supreme Court; and 4) efforts, County That with simultaneous such the Tuscola support encourage appro- Board of will Commissioners and other priate statutory changes Constitutional and will which assume [sic] efficient, orderly, the and cost effective administration of the trial courts, system control; with a of local and 5) copies That of this to Resolution sent Senator Joel Gougeon, representative Green, Engler, Michael Governor County Ottawa, Michigan Counties; and the Association and parts that all resolutions and of resolu- Be it further resolved they hereby tions insofar as conflict this Resolution are repealed.

I, Margie White, Clerk, hereby certify A. Tuscola Count do that [sic] foregoing copy complete adopted is a true and of a Resolution County regular Tuscola Board of at a Commissioners meet- ing January 13, on 1998. Opinion of the Court cooperation between recognize We court.29 process essential government branches is judici- appropriation for the determining a reasonable appropriated must be ary’s expenditures. amount negotiation between good-faith determined has process branch. This judiciary and the over a federal and state level for very worked well on is the fact years, hundred and its success due to two respected has recognized that each branch authority limits on own boundaries its Disagree- other branches. delegated been the ment and between the branches has impasse this exception rather than the rule. There no doubt harmony branch of government is due each playing on a bargaining table level approaching However, “experimental” legisla- as an equal. field in the an imbalance tion under consideration creates judiciary legisla- bargaining positions dif- more branch, making good-faith negotiations tive argue ficult. It is one branch disingenuous over control of taking sole economic government’s improve rela- employees would their another branch’s equal tionship branches of government. and status Act 374 provisions To hold 593a of § the stricken the trial seriously constitutional would undermine carry judicial out its function ability court’s to 29 pro partially dissent, post suggests n we certain rewrite anytime § circuit there visions of 593a and insert the words “the court” any “employer.” legislation is within to We rewrite of a reference believe judiciary. province Legislature further and not the The dissent the provisions striking bar of Act 374 renders all collective claims our certain hortatory county independently agreements gaining decides unless the agreement. entering into collec What is new? Courts have been fund the years par employees bargaining agreements with and both their tive appropriation agreement be within the have known the must total ties unit. allotted 228

Opinion of the Court encourage Legislature employees over take appellate judiciary branch of the and the exec- guise efficiency. utive branch under the of fiscal Such destroy legislation would and executive government’s power preserve branches inherent authority. expect their constitutional We no chaos will merely holding result from our decision because our practice reinstates the of this state since our first constitution.

m Finally, and the GAA contend that the trial JAA finding court erred in that Act 593a did not vio- gaa argue late the First the pera. that the jaa party designated by employer, Wayne Act as their County, mandatory has no control over some subjects bargaining. pro- As above, concluded this vision is unconstitutional, and we have remedied this by providing employ- that the at issue are Accordingly, argument ees court. this is now remaining moot. The PERA issues are also moot now coemployer relationship we have stricken the 593a(4) (5) created subsections of Act 374. reasons, For these in Docket No. we reverse determining the order Act violates Headlee In Amendment. Docket No. 201852, we portion determining reverse the of the order that Act 374 violates the Headlee Amendment and affirm the provisions creating determination that of Act 374 coemployer county relationship between the and Separation court violate the of Powers Clause. part part.

Affirmed and reversed in J., concurred. Fitzgerald, Michigan v Opinion by Markman, P.J. part P.J. (concurring dissenting

Markman, fully majority opinion’s I concur with the part). of the Headlee Amendment issue. I treatment write I separately, however, disagree because majority’s provisions conclusion that number of 1996 PA 374 must be stricken from the act as violative separation powers. of the constitutional Const my any potential art 2. In 3, judgment, separa- § powers yet ripe concerns are not tion of decision. Attorneys Judicial Association (jaa) Government Administrators Association con- (GAA) coemployment relationship tend between local units and the courts created Act 374 separation powers. violates the constitutional 2. Const The trial court found that the provisions of Act 374 for the sharing over court separation violates the constitutional powers because it potential “creates the for over- reaching County.” (Emphasis supplied.)1 Simi- larly, majority strikes down several provisions of Act 374 as violative of the constitutional potential on basis of a for overreaching by the local funding unit.

However, statutory “under established rules of con- struction, presumed statutes are constitutional, duty courts have a to construe a statute as constitu- tional unless unconstitutionality clearly apparent.” v Mahaffey Attorney General, 222 Mich App 325, 344; Here,

564 NW2d 104 (1997). presumption of con- large part Judges The trial court relied in on Berrien Co Probate Michigan 25, AFL-CIO, App 205; AFSCME Council 217 Mich 550 NW2d (1996); Supreme subsequently however the Court ordered opinion precedential this shall “have no or force effect.” 454 Mich 564 NW2d 46 [Max Opinion by Markman, P.J. stitutionality particularly strong because the Michi- gan Constitution specifically empowers the Legisla- ture to “enact laws providing for the resolution of dis- putes public concerning employees, except those the state classified civil service.” Const 1963, art 48. To § make a successful facial challenge to the constitutionality of a statute, plaintiffs as attempt “ here, the challenger must establish that ‘no set of circumstances exists under which the would be [a]ct ” valid.’ Council Organizations & Others Ed for About Parochiaid v Governor, 455 Mich 557, 568, 602; 566 NW2d 208 (1997), quoting United States v Salerno, 739, 745; US 107 S Ct 2095; 95 L Ed 2d 697 (1987). Here, specific provisions struck down majority may well allow the possibility overreaching the legislative branch, but there has utterly been no demonstration that “no set of circum- stances exists” under which Act 374 would be valid under the constitutional architecture of Michigan. That it is conceivable that a constitutional violation might indeed, even that it is more conceivable occur — that it might occur than it was before the enactment of Act 374— equivalent is not to finding that a consti- tutional violation must necessarily occur.2 controversy If ripe we had an decision, actual case or there would dispute county be a concrete judge between the par and the chief over a presumably ticular economic judge wishing with the chief issue — employee accede county to some demand for a concession and the balk ing expense. at the We would then be asked to decide whether county’s position preventing fulfilling was the court from its constitutional responsibilities. affirmative, If we decided in we would rule that the judge approve chief could notwithstanding county’s the concession objections county resulting agree that the would have to fund the ment; negative, if we judge agree decided in the the chief could not obtaining equivalent demand savings without an elsewhere and then con county vincing approve package on a “bottom line” basis. See Judges Bay Co, 710, 726-727; Judicial Dist v 74th 385 Mich Michigan Opinion by Markman, P.J. 2 states:

Const powers government divided into three judicial. person legislative, executive and No branches: exercising powers shall exercise of one branch except expressly properly belonging branch to another provided in this constitution. the Second Judicial Dist Judge

In & Employees 378 NW2d Co, 705, 717; Hillsdale Court v stated: Supreme Court (1985), pre- power government inherent Each branch of has authority. serve its constitutional any certainly department, intended that one

“It was never powers, acknowledged through the exercise of its should be prevent department fulfilling from its able to another people responsibilities under the Constitution.” [O’Coin’s, Treasurer, 507, Inc v Worcester Co 511; 362 Mass (1972).] NE2d 608 287 indispensable concept

However, ingredient an coequal government is “each branch must branches of respect recognize and the limits on its own authority delegated to the other the boundaries of the Will, v 228; branches.” United States 449 US 101 S Ct 471; (1980). 66 L Ed 2d 392 App 19, 22-23; 471 People Trinity,

In v (1991), NW2d 626 this Court held: separation powers doctrine has never been inter- any preted meaning can never be over- there lapping or no control one of functions between branches Soap Detergent & Ass’n the acts of another. branch over us, However, dispute (1971). we have no such concrete before NW2d219 county disputants on hand and in which the are the the one still less one other, contending judge that the other branch is the chief on the each attempting prerogatives. to intrude on its own 430 228 386 Mich Opinion by Markman, P.J. Comm, 728, 752; 330 NW2d

Natural Resources 415 (1982). Addressing separation powers, the United States Supreme Court stated in Mistretta v United States, 380-381; 488 US Ct L Ed 2d 647; 109 S (1989): powers

Separation of . . . not mean these “d[oes] departments partial ought agency in, to have no or [three] other,” no controul over the acts of each but rather “that power department where the whole of one is exercised possess power the same hands which the whole of another department, principles the fundamental of a free constitu- 47, pp tion are subverted.” The No. Federalist 325-326 (J. 1961) (emphasis original). Cooke ed separation powers The constitutional is concerned “ aggrandizement with ‘the encroachment or of one ” expense supra branch at other,’ Mistretta, (citation omitted), disruptions at 382 and with “proper prevent balance” between the branches that “accomplishing constitutionally- one from branch its assigned . . Olson, functions . .” Morrison v 487 US S L 2597; 108 Ct Ed 2d

Clearly, activity whenever an involves the function- ing government, of more than one branch the con- implicated stitutional running care must be taken to avoid afoul of Const separation § 1963, 2. 3, art While the constitutional of powers powers by sharing forbids of different way any branches, it does not in forbid two branches government exercising powers of from their own over subject the same matter. The different duties of the separate may require branches sometimes them to act upon the set Indeed, same of circumstances. this rou- P.J. Opinion by Markman, legislative example,

tinely when, occurs legis- negotiations engage over in branches executive authority pursuit of its in measures, the former lative pursuit § in 1 and the latter 1963, 4, art Const under art 4, 33, or Const under of its powers branch §§ of each cases, the In such 17-20. exercising leg- Legislature discrete—the remain exercising power executive is and the islative upon they brought power to bear executive —but blending There is no of circumstances. set the same opera- only blending governmental powers a but powers does The constitutional tions. by sepa- powers prohibit exercise of distinct not jointly pursuit end; of a common rate branches exercising only from one branch it forbids rather, powers separated powers The branch. of another overlap; the exercise however, do not the branches separate powers is, the does. That often these may powers distinct often branches of two operation subject and the areas, the same focused on blending may occasionally government a involve responsibilities, never a governmental there is but legislative blending or functions. power, always exercises branch always executive exercises the branch executive always judicial power, exercises branch power. judicial operate with abso- entitled branches

Nor are the subject-matter independence areas in those lute legitimate possess inter- also branches which other majority branch, agree that the with the I est. ancillary pow- inherent has branches, other like the super- quoting majority, ante at But the ers. Wayne opinion original Circuit Court in seded 432 Opinion by Markman, P.J.

Judges Wayne Co, 10, 21; v 172 NW2d 436 (1969), opinion superseded opin- of the Court by adopted opinion ion and Black as the Dethmers rehearing, the Court Mich 1; on 190 NW2d 228 seamlessly (1971), proposition moves from the “ ancillary capacity have branches ‘some inherent normally by things to do which are done other ” departments’ to the conclusion that such inherent authority is both “inherent and exclusive.” Ante at majority 413. The assumes without necessarily powers despite inherent exclusive, powers generally govern- fact that such will relate to may mental matters over which another branch also possess power. only The branches are entitled to powers independence, exercise own their with not only other Thus, branches.3 issue here is whether Act 374 results in one branch’s impinging exercising on another branch the other’s function. (the legislative branch)

Both the local unit (the judicial branch) legiti- court trial have responsibilities relating operation mate of directly trial courts that derive from the constitution Michigan. legisla- and laws of In whatever manner the responsibili- tive and branches exercise their regard operation sys- ties with to of the trial court may potential tem, there concerns that either overstep proper branch will its boundaries and attempt usurp to exercise or the functions of other. But these are no different than the constitu- sealing An “hermetic off of the three branches of Government from preclude capable one gov another would the establishment of a Nation erning effectively.” Buckley Valeo, 1, 121; itself v 424 US 96 S Ct L46 Ed 2d 659 Opinion Markman, P.J. subject respect to other that exist

tional tensions legitimate regarding interests which the matters few, these separate but a To name intersect. branches legislative and between the tensions include: would implementation the latter’s over branches executive regulatory enactments, tensions former’s of the judicial over the branches and executive the between pursuant public supervision to institutions of latter’s injunctions, between the tensions and affirmative spending legislative over branches and executive appropriation Such tensions measures. in restrictions system part in which of a constitutional a routine are separate among dispersed powers governmental impose and balances checks in order to branches govern- thereby upon, exercise of limit, the and power.4 mental Supreme majority, Michigan by the

As noted powers implica- separation of Court considered imple- guidelines for forth Act 374 and set tions of menting 1997-6, which No. in Administrative Order it part: pertinent states in powers requires separation that the principle of of aspects responsibility of for all and ultimate

fundamental personnel matters, operations, including resides trial court management of the judicial branch. . .. Effective within the requires positive however, court, also a operation trial of a judges relationship and the local working between chief exercise of shared funding courts in the units of their overlapping in effect as the can be defined “Checks and balances” subject separate powers application to a common of the branches of the contemplates concept a less and balances” of “checks matter. While the separation powers, con “pure” not contradict this of it does form of than ability complements principle to with it. Without but rather stitutional perform might encroachments, the functions be unable to a branch stand by separa governmental a assigned structure characterized within a to it powers. tion of Opinion Markman, P.J. responsibility public. protecting to the In addition responsibilities managerial judiciary of the its over branch government, principle separation powers pro- of of tects local in their units own area of fundamental responsibility: appropriation public dollars. Given the separate responsibilities judiciary and court’s funding units, application principle operation requires practi- of trial a courts separate spheres cal reconciliation constitutional legislative judicial spheres where branches those intersect.

Whatever the undeniable potential friction between the in branches exer- cising separate spheres their over the courts, trial Administrative No. recog- Order 1997-6 is, fact, history nizes there a cooperation reasonable between the two branches respect with this responsibility.5 In circuits and dis- history tricts of financing the local unit county as a (such board of commissioners), the pre- relationship cise between the court, local unit and the and the exact of responsibilities, allocation has dif- considerably fered from court Yet only court. a assume, majority opinion implicitly does, I do not as the legis that the branch, carrying legitimate responsibilities 374, lative in out its under Act compelled every will feel in instance to may exercise fullest measure itsof power approach where dividing such exercise even or cross the line responsibilities primary judicial its between and of those is branch. It separation powers all not at inconsistent the constitutional of that may decide, policy matter, one branch as a use restraint the exercise powers of its order avoid conflict and confrontation with another promote cooperative making. or to Michigan branch decision See Univ of Regents 52, Michigan, 70-71; v 395 Mich NW2d 1 “While the power liberty, Constitution diffuses the better to secure it also contem plates practice powers integrate dispersed that will into a workable government. enjoins upon separateness interdepen It its branches but dence, autonomy reciprocity.” Youngstown Sawyer, but Sheet & Co Tube v 579, 863; 635; (1952) (Jackson, J, 72 S US Ct 96 L Ed concurring). P.J. by Opinion Markman, relationships so variety handful of the

small prior constitu- subject been the worked out has majority The nonetheless concludes challenge. tional relation- an unconstitutional prescribes Act 374 trial court without local unit and ship between the relationships, range the full these considering with the compatible of which would be vast number by the branches single method which act. There no relationships their in order to avoid must structure powers. The separation violating constitutional does not inhibit constitutional subject in addressing and innovation experimentation possess branches which different regarding matters only requires It intersecting responsibilities. relationship impinge is devised does not on whatever any by allowing function branch the constitutional powers. another branch to exercise its of Act 374, I that before the enactment Indeed, note Court and the employees of both the Third Circuit employed by the State Judi- 36th District Court were cial Council. The State Judicial Council consisted of Administrator, a constitutional officer the State Court Wayne 6, judicial branch, 3,§ Const art Judges, supra, Circuit 9; each judges two probate court, court, circuit and dis- from the appointed for cause court, trict and removable Department Justice; the director of the Chief and appointee Management Budget, gubernatorial Executive, of the Chief Const serving pleasure at the MSA 18.1123; 18.1121 and MCL MSA 600.9101; MCL 3.516(123). 3.516(121) Act mem- 374). (repealed 27A.9101 statutory council, exercising in their of the bers negotiation the responsibilities, particularly including Opinion by Markman, P.J. bargaining employees agreements of collective with Court, Court, of the Third Circuit the Recorder’s required Court, the 36th District were to as a vote preclude possibility by bloc in order to of a veto Department Management the director Budget. 600.9104(2); 27A.9104(2) MCL MSA by (repealed 374). Legislature specifi- Further, Act cally provided compensation that no in increase bargaining agreement under a collective implemented could be Legislature if either house of the rejected sixty days it within of transmittal of the agreement. 600.9107(1); 27A.9107(1) MCL MSA by (repealed 374).6Thus, 1981, Act at least since employees employees entity at issue were the of an representing a combination of the and execu- partial tive in branches, which the a executive had power, legislative veto over which the branch power regard a reserved one-house veto to eco- respect issues, nomic and with even in which, possessed veto, absence the Governor any appropriation. a line-item veto over 1963, Const Accordingly, why § 19. it is hard to understand these should now claim that Act 374 undermines the constitutional they operated previous arrangement

when under the apparent objection difficulty.7 without or by repeal provisions The council was abolished of these of the Revised Judicature Act 374. Act cognizant constitutionality previous arrangement I am that the of this My purpose arrangement not mentioning before this Court. sole in anomaly present separation powers challenge is to note the history acceptance previous arrange Act 374 in the context of a of a part leg ment that was marked considerable involvement on personnel employ relating islative and executive branches matters serving judiciary. majority, ante ees n seeks to explain objection prior arrangement lack on basis “the 437 Michigan Opinion Markman, P.J. constitutional, that statutes presumption set of requirement the that “no supra, and

Mahaffey, be exist” which Act 374 would circumstances under facially it can be declared unconstitu valid before supra, clearly tional, Organizations, Council of overreaching potential than mere for require more a be struck down provisions of Act 374 to in order for pow the as violative of constitutional requires ripeness doctrine Similarly, ers. controversy, existing live there an actual and be merely potential one, before a court rather a than is may judicial powers. Ripeness a consti exercise its limitation on the that exists as a tutional doctrine adjudicate constitutional judiciary’s to address and .8 ques prudential both of It is a function tions relieving operations participating courts, fully funding of the state point government While this is histori- of a financial burden.” local sizable bargaining cally accurate, entirely issues is unrelated to the collective it county city, present now and the who involved in the lawsuit because plaintiffs courts, are not and must shoulder the burdens of Legislature’s any challenge division of collective not have raised any responsibilities. jaa bargaining can have Neither nor gaa identity funding source, legally cognizable state or interest in the they local, employee are able to for remuneration benefits legitimate negotiate in interest is of their members. Their sole on behalf collectively they binding something being bargain in a able to manner — may majority, jaa at the not able to do now that the albeit gaa’s pro- county any bargaining invitation, role has denied the in the collective infra, n cess. See 23. 8 judicial power review is A limitation on the of constitutional cardinal “ question anticipate a of constitutional law advance ‘never to ” Philadelphia necessity deciding Liverpool, . York & it . . .’ New 33, 39; 352; Emigration, L Steamship 5 S Ct 28 Comm’rs 113 US Raines, Co v 21; quoted 17, (1885), S Ct States v 362 US 80 Ed 899 United ripeness 519; (1960). limit on a author 4 L 524 Because is a court’s Ed 2d ripeness ity adjudicate, appropriate sua it is for court to consider standing parties sponte is not raise it. This Court under even if the do jurisdiction orders, were, always inquire into fides of our it the bona as 242; 238, sponte. Regents, Mich 134 v Univ Bd 375 sua Fox refusing (1965). on the basis of lack NW2d That to consider an issue 146 423, majority asserts, ripeness might, as be viewed ante 228 Mich Opinion by Markman, P.J. adjudication limitations on constitutional controversy” “case or judicial jurisdic- limitations on imposed by Const, tion US III, art and Const § 1963, 6, Ferber, 747, New York v US 767- 3348; 768 & n 102 S Ct L Ed (1982); 2d 1113 Request Opinion Advisory on Constitutionality 1997 PA 86; 260 NW2d 436 Only power upon bestowed judiciary. As Supreme the United States Court has observed: power pass upon The of courts ... to the constitutional-

ity Congress only of acts of when arises liti- interests of gants require judicial authority pro- the use of this for their against hypothetical tection actual A interference. threat is enough. not . . The . Constitution allots the nation’s power respect federal courts. Unless these courts unique they authority, upon limits of intrude in vested or executive branches. Judicial powers pre- adherence to the doctrine of the of issues, serves the of courts the decision between liti- capable gants, exposi- of effective determination. Judicial political upon proposals permissible only tion is when nec- essary to litigants. decide definite issues between When the continually constitutionally courts act imposed within these power, ability perform boundaries of their their their people’s protection function as a balance for the against power by government abuse of other of branches remains unimpaired. expand power Should the courts seek to their jurisdiction bring so as to under their ill-defined controver- issues, they sies over constitutional would become the organ political judicial power theories. Such abuse of properly would meet rebuke and restriction from other By branches. these mutual checks and and balances litigation” “inviting date, some future if and when issue becomes ripe, argument honoring ripeness Indeed, is no for not doctrine. such argument effectively altogether an would vitiate the doctrine it because hard to conceive of a in circumstance which it could not invoked. Michigan Opinion Markman, P.J. democracy government, under- branches between the people from excessive preserve liberties of the takes to authority. Public Workers [United concentrations 556; Mitchell, 75, 89-91; 67 S Ct (CIO) v 330 US America (1947).] L Ed 754 in General Supreme Court stated

The 558, Attorney General, Corp v Motors (1940): 293 NW 751 way operation go out its test the

The will not court every set of circumstances. conceivable law under validity light only of an act determine the court can questions are to be not before it. Constitutional facts Supe Co v in the abstract. Bandini Petroleum dealt with 103, 826) [1931]; 11 Court, (52 S 78 ALR rior 284 US 8 Ct 111, 18. p cited in note § Am Jur cases applied many could be construed or Here, Act 374 many permutations, antici- ways, in combinations unanticipated, engen- some of which would pated and difficulties and others of der no serious constitutional which be inconsistent Const might there no part. arrangement 2 in whole or in Is local and the court responsibilities between the unit majority would find under Act 374 that possible it at all with the Constitution? Is consistent not been yet presented this Court has relevant dispute an between the two branches intractable truly majority Can the conceive no under Act 374?9 the two branches could circumstances under which system cooperatively structure their court without 9 precept of law is that when two A fundamental constitutional policy government pursue a on the basis of mutual common branches constitutionality strongest presumption agreement, attends their 5, supra J., 2, Youngstown, (Jackson, concurring). See n n actions. supra. App 228 Mich [Max P.J. Opinion by Markman, afoul of a constitu- running the constitution?10 Where majority’s inquiry regarding To answer the how the statute could con ceivably operate manner, suggest possi following ain constitutional I 593a(5) arguably operate ble situations which subsection could without running afoul of concerns: county, pursuant appoints 593a(6), judge 1. The subsection to chief agent bargaining, subsequently as its for collective ratifies the con- negotiated; tract as pursuant judge, 593a(6), appoints county 2. chief to subsection (or county’s representative) agent bargaining, for collective subsequently negotiated; ratifies contract as county judge separately represented, 3. The and the chief are but as negotiation arises, agents each issue these confer and accord reach regarding position taken; to be county separately judge represented, 4. The and the chief are and with regard respective representatives differ; to some issue noneconomic their judge prevails 593a(5)(b), the chief under subsection which even the majority (because concedes must be constitutional it identifies a constitu- imperative pursuant judge tional to which the chief to must able act unilaterally); county judge separately represented, 5. The and the chief are and with regard respective representatives differ; to some economic issue their if judge compelling the chief can make a case to establish that the necessary implement position minimally required his is for the court responsibilities, prevails judge fulfill its constitutional the chief under Wayne Judges, supra; Circuit county judge separately represented, 6. The and the chief and with regard respective representatives differ; to some economic issue their judge compelling chief is a unable to make case to establish that the fend- ing necessary implement position required minimally his is for the responsibilities; county court to fulfill its constitutional allows the leeway judge problem chief full to resolve the as he chooses within the parameters lump budget; again, of a sum is there no constitutional diffi- culty Judge, 594, Ottawa Co Controller Ottawa Probate 603-604; 401 NW2d 869 may categories There well be additional of situations where constitu- necessarily And, course, tional difficulties would not arise. when an problem arise, justiciable controversy actual does constitutional will ripe time, then be for decision. Until that “wisdom demands abstention specific impasse presented.” Michigan Regents, until a Univ n supra at 70. Further, notwithstanding majority’s p suggestion ante, in n it is inconsistent to conclude both that the constitutional issues here ripe facially invalid, are not for review and that Act 374 is not it is hard to understand how the former conclusion could ever be drawn absent some inquiry into the latter. Michigan v Opinion Markman, P.J. anticipatorily, presented is the Court tional issue ques- regard required to the rule with to decline Dentistry, Bd State tion. Sullivan NW471 429-430;256 any points majority parties nor Neither controversy existing Court, Third Circuit between the County Wayne judge, Board of and the or its chief compensation, respect Commissioners, holidays, policies pensions, fringe or leave benefits, employees applicable Third Cir- to nonclerical wholly judge unfettered remains The chief cuit Court. promote, appoint, deciding demote, or whom to responsi- positions discharge, what to create assigned, work when the to be and functions bilities day for meals or ends, the time allowed starts they employees, whether number of breaks, rest just-cause, employed or some at-will, on an shall be hierarchy, including personnel basis, other their report, they all such details other whom shall relationship. employer-employee extent To the particular level of that a able to demonstrate that it is pension package fringe compensation, benefits, or necessary holidays, are allowances and leave benefits, in terms of the court minimum demands to fulfill the litiga- adjudicating criminal of civil and its caseload eco- over also has full circuit court tion, Judges, supra. Wayne Circuit as well. nomic issues requirements however, met, minimum Once those county is the formal it or the court, whether employees, “employer” structure must court’s pension compensation, fringe benefits, benefits, holidays, those allowances of and leave appropriation budgetary of its constraints within the county. the “inherent” Whatever from the Opinion by Markman, P.J. judiciary, they to this extent are transcended purse. the power of the Univ Michi Legislature’s of gan Regents Michigan, 52, v 395 Mich 235 70-71; NW2d 1 (1975). the the Amendment,

Outside context of First “[generally, facial are disfa- challenges legislation Up vored.” & Michigan Out Now Coalition Poverty of Michigan, v App 162, 210 Mich 533 339 170; NW2d However, majority (1995). nonetheless strikes provisions down of a number of 374 Act that plainly ripe not for decision.11

First, majority, 415, ante at strikes down sub section Act 593a(3) 374, contending of that it is an 11 majority appears challenge that conclude the constitutional separation ripe perceives based on because it that the mere 593a(5)(a) political existence subsection so alters the balance between judiciary applicable funding instance, and units—in this between the County Wayne Third Circuit Court and the Board of Commissioners—that argument it constitutes an affront to Const 2. A similar was by disgruntled (the Congress principals made members of constitutional “proxies” in in that case contrast constitutional in the involved case) Byrd, US_; 2312, 2316; in instant Raines 521 L v 117 S Ct Ed (1997), challenged legislation creating 2d where was attacked as “unanticipated by govern and unwelcome subservience” one branch of solely by enactment, though ment to another virtue of its even the statute (the yet veto) rejecting argument line item had not been invoked. In unripe, Supreme explained ripeness the United States Court is a corollary standing, noted standing inquiry especially rigorous reaching our has been when dispute the merits of the would force us to decide whether an action taken one of other two branches of the Federal Gov- was Wright, ernment unconstitutional. ... As we said in Allen [v 737, 752; 3315; (1984)], 468 US 104 S Ct 82 L Ed 2d 556 “the law

Art in standing single separa- is built on a basic idea of idea—the powers.” [Raines, supra, US_; 2317-2318; tion of 117 S Ct 138 L Ed 2d 858.] Thus, that, by addressing controversy it is ironic the merits of instant in order to declare that the statute violates the constitutional powers, majority arguably itself has run afoul this same principle. v Opinion P.J. Markman, employees.”12 Sub of the court’s takeover

“outright in the serving states that 593a(3) section the fail Wayne County (given employees of court are County of Commissioners Wayne Board ure of the This is County Council).13 Judicial Wayne create and must be read of status merely a declaration this declaration of Act to render context larger constitutional contro present dispositive status structure surrounding versy, considering without sub is to subordinate statute, language Livonia, to form. See Johnston stance Subsections 441 NW2d App 200, 208; con clearly indicate the court’s of Act 374 593a(4)-(9) court employees serving over tinuing County as Wayne designation formal despite the employees.14 Accordingly, “employer” the of these 12 portions 593a(6), (8), majority of subsections also strikes down they depend (10), (11), (12), (13) of on the definition because “employer” 593a(3). in subsections 13 similarly majority, note, I the 593a is constructed as does specifi litigation, provisions in the instant of Act 374 that are not at issue 8274(5). cally 591(4), 8271(6) and §§ “employer” Wayne County 593(a) designates of as the Section both continuing judiciary employees serving states that the court has in the clearly cooperative authority employees. a relation It indicates over such bargain ship in collective these two entities and a role for both between majority’s contention, ing. Contrary not ante at Act 374 does to the identity regarding plaintiffs the of their “in need of direction leave this, however, employer.” Apart to understand the from it is difficult bargaining process majority’s viewing in as one for the collective basis oppo object party manner in which the be heard to which one can appears per represented. judge party Whether the chief site chooses to be Wayne County sonally by agent, Board of Commissioners whether the or representative person appears through com or in the of its individual designates masse, judge the same and whether the chief missioners en jaa gaa only commissioners, to sit agent have the board of as whomever, bargain negotiating behalf of on at table and down appears, representative employer, appears. unions If no authorized the may appropri practice charge pursue properly before the an unfair labor agency. ate administrative 228 Mich Opinion Markman, P.J. whether in designation subsection 593a(3) Wayne County “employer” as violates the constitu separation tional powers, my judgment, will not ripe Wayne County until takes some action regard employee an ing to which objects, the court the two branches are subsequently negotiate unable to a reso lution, Wayne County proceeds unilaterally in reliance on this provision, and the court initiates a lawsuit against county. This yet has not occurred. provision Whether this violates the sep constitutional aration of turns on whether one branch is another preventing branch from exercising its consti tutionally assigned function.15 Here, while Act 374

15I have discovered no cases that hold that a statute that makes one employer personnel working branch necessarily in another branch separation powers. violates Beadling Governor, the constitutional App 530, 536; (1981), 308 NW2d 269 held that the reinstatement discharged employee legislative executive branch of a branch powers. However, violated the holding constitutional this position sensitivity turned on the fact that the at issue was one “of some legislative process” permit within the and that to executive overview of position dangerous would “allow a incursion into the Ottawa, 10, supra realm.” Id. at In 536. n this Court held that a employer personnel purposes court salary is “the negotia court authority tions” and has necessary to set “reasonable salaries for its employees instance, long in the first as it remains within its total budget appropriation.” reaching conclusion, In this the Ottawa Court Judges Co, relied on Bay 710; Judicial Dist v 74th 385 Mich (1971), proposition NW2d 219 for the that district courts rather than the local units Livingston have Livingston set salaries and Co v Judge, (1975), Circuit 225 NW2d 352 which the Ottawa Bay holding Court contended serving extended the Co probate Ottawa, supra However, circuit and Bay courts. at 602-603. statutory analysis. Co turned on Bay Co, supra rather than constitutional Bay Court, supra 727, at 726-727. That holding Co stated that its principles was “consonant” with constitutional does not mean that its holding constitutionally required. Livingston only spe held Co that the bargaining process cific judiciary that it considered —in which the bar gained employees with the and the contract was submitted to the State approval, Court provided Administrator for with the local unit an opportunity present its views to the administrator —did not violate the separation powers. Finally, Gray constitutional of in v Clerk Common of 445 Opinion P.J. Markman, clearly “employer,” it County as the Wayne

designates judiciary in exer for the a critical role contemplates judici in the employees serving authority over cising While bargaining.16 in collective a role ary, including relevant in relationship is governmental of a the form with the comports which it the extent assessing is the sub powers, so too separation of constitutional relationship. stance such a pleadings more in their have done little Plaintiffs “employer” as the county’s status invoke the than to demon- They nothing have done personnel. court by itself will undermine status that such strate carry judicial function out ability of the courts relationship presupposes some that such status or ability. they Nor have demon- this that will undermine legiti- does not advance the the statute strated that performing leg- in their interests of the counties mate I do not believe that Accordingly, islative function. 594; (1962), Court, NW2d 411 the Court held 366 Mich Pleas authority pleas a “under the statute” to remove court had the common bailiff. employees Further, of instances in which there are a number County government are an in another branch. clerks branch of serve one example closely judiciary, yet employees are not who work every county is the clerk of the court. The clerk circuit county deputies Although and their § 14. clerks court. Const may judicial branch, closely their salaries be fixed with the work legislature interference. Bartkowiak v or local free from state 333, 342-344; (1954). Wayne Co, 67 NW2d 96 The classification 341 Mich county deputy executive the classified civil service of clerks within Co, Wayne Sabbe v doctrines. does not violate Co, 513; (1948); Wayne Duncan v 33 NW2d example agencies are an of entities that Administrative NW2d 605 part quasi-judicial capacity the executive branch. but are often act Co, Bay supra at 727. appears person majority’s primary to be over concern judiciary’s However, nothing author in Act 374 restricts nel matters. ity discipline. hiring, firing, personnel Fur matters of over the core judiciary any employees serving ther, who has no effect on Act 374 subject bargaining. to collective are not Opinion Markman, P.J. Wayne designation 593a(3) in subsection County “employer,” impinges face, as the on its on judiciary by enabling legislative branch to usuip judiciary function. While the under- standably prefer designate would that Act 374 employer employees serving court as the sole in its branch, the issue before us is whether subsection 593a(3) separation pow- violates the constitutional Facially, 593a(3) ers. subsection does not violate the powers; prac- constitutional whether, in impinge judiciary’s tice, a local unit will on the consti- provision tutional functions virtue of this is an currently ripe adjudication. issue that is not for majority, ante at next strikes down sub- 593a(4) county section because it allows the “to share authority the court’s inherent and exclusive over all personnel 593a(5) matters” and subsection because it managerial judici- “divides the inherent ary county.” between the court and the Section 593a(4) “employer” designated states that the in sub- 593a(3), judge, section in concurrence with the chief authority (a) personnel policies relating has over specified subject (b) matters and to enter into collec- bargaining agreements. Wayne County, tive That authority concurrence with the court, has some over employees serving judiciary poten- in becomes tially problematic only disagree if the two branches 593a(5) over some matter. Subsection sets forth a authority division of between the local unit impasse regarding and the court in the event of an subject 593a(4)(a). matters listed in subsection In question constitutionality order for the of sub- 593a(4) (5) ripe, sections to be the local unit and impasse the court would have to reach an that would Opinion by Markman, P.J. lay invoking 593a(5) subsection groundwork judicial representatives would respective their limits of disagree then have to on entity extent that one sued the other. any event, that, In I yet This has not occurred. note impasse provisions subsection although subjects appear place relating certain 593a(5) beyond authority in the employees serving the court impasse, in the event of an a closer look of the court authority this division of demonstrates authority subject matters committed to the of the strictly relating local unit are those to finances —the concern of the local unit —while legitimate legislative authority personnel is committed regarding all other provisions represent These a good-faith to the court.17 by the restate Michigan Legislature roughly effort spheres authority part on the presently recognized judiciary operation in the of the of local units and the beyond majority trial courts.18 The would reach subject impasse Moreover, in matters listed the event of broadly necessarily mutually example, and are not exclusive. For defined authority unit, employee while leave the local time committed may discipline, authority court, which is committed to the involve Similarly, compensation the misuse of leave time. is committed to the authority unit, grievances, of the local but which are committed to the authority court, may compensation. Thus, impasse pro involve subject purport prescribe specific visions do not in detail matters over authority merely recog which one of the two branches has exclusive but general regarding employees. nize the interests that each branch has court precisely In those areas in which the interests of the branches most closely intersect, impasse provisions I believe that the are least clear controversy precisely ascertaining particular the branch in which a is to finally Thus, provi set out in these resolved. division clearly requirements of the constitu sions is not inconsistent with separation powers. tional 18Indeed, portion I see this of the statute as an effort to declare relationships legislative existing branches as between the prerog by prior legislative established case law. The branch has the initial Only if, regard that Act 374 confides to it. in the ative with to the matters 228 Opinion by Markman, P.J. present necessities of the case to strike down this attempt to forestall future conflicts between these branches. necessary

None of the events to transform these potential separation concerns into actual and concrete “cases and (US Const, controversies” III, 2) occurred, yet they has are prematurely majority.19 currently decided here There is no ripe separation powers controversy for this Court to decide. See & Michigan Up Out Coali Poverty tion, supra at n 5. I Accordingly, conclude that constitutionality ought of Act 374 not to be record, resolved on this at this time. When and if a conflict arises between a local unit prerogative purse strings, exercise of its over the the local unit leaves the carry judicial functions, court with insufficient resources to out its or oth judicial function, may judiciary, erwise interferes with the under the power doctrine, require inherent branch to withdraw from power. Court, supra an exercise of Second Dist at 724. No such interfer present may potential ence is reflected in the record. That there be a powers problems resolving does not warrant this Court controversy. thorny problems abstract, proper such in the without a case or Michigan supra Regents, 66-67, iv at 69-70.Public confidence Un of any judicial by awaiting in resolution of such will issues be fostered a proper development question record for further of the constitutional separation powers. Court, supra Second Dist at 725.1 am aware of no Michigan in case which a statute has been held to violate the constitu separation powers solely possibility tional on the basis of the of a potential unspecified conflict at some future date. This Court does not to power advisory opinions ought arrogate have the to issue and not to this extraordinary authority 1963, 3, to itself. § See Const 8. majority, 25, suggests The ante at n that I “mischaracterize” striking provisions them as down several of Act 374 on the basis of a potential by overreaching the local unit. How else can their controversy? action be characterized in the absence of an actual or case controversy, any In controversy” the absence of an actual case or “case or necessarily be, best, potential. potential must And a “case or contro versy” controversy majority may prefer is no case or at all. While the to explicit “potential,” avoid the use of the term the decision of the trial they regard correctly recognized court that affirm in this § that 593 could only be rendered unconstitutional at this time on this basis.

Opinion by P.J. Markman, to resolve them- they among that are unable court separa- any constitutional selves, the determination precise will turn on the con- powers tion of violation admittedly experimental dispute. The tours of potential minimize con- by Legislature to effort joint by mandating and courts flicts between counties process bargaining involvement in the collective in play to itself out opportunity should be an given an conflict world; only the real if irreconcilable if there is occurs, the branches or otherwise between judicial function performance that the evidence presume this Court undermined, has been should questions raised here. address the constitutional par- face of Act 374 or the nothing There is on the majority down provisions ticular struck likely certain, not, makes it or even more than will any judicial function of the trial court be discrete branch impaired. legislative Under Act complete over its constitutional func- retains control judiciary complete retains control over tions respect operation its constitutional functions with If, practice, prove the trial courts. that does not true, this Court should be vigilant striking relationship usurpations. Obviously, down such the branches described in Act 374 raises the between powers that constitutional dis- potential are putes may These, however, arise in the future. they less a function of Act 374 than function apportionment constitution’s between present, branches. For the and disputes speculative of such remains arising “potential” disputes, expressly for such uncertain. for assess- set forth the trial court as the standard here implicitly adopted violations of art ing Opinion by Markman, P.J.

by majority, widespread throughout is our consti- system. may tutional It often be the case that one will branch have to assert itself in order to ensure potential ripen conflicts do not into actual con- flicts; further, when actual conflicts, fact, arise, it is normally political judicial process rather than the Only that works out such conflicts. when such con- prove politically flicts too stubborn to be resolved, ability perform and when the of a branch to its con- obligations thereby stitutional dispute typically undermined, is the justiciable

transformed into a con- troversy into which the courts must be drawn. Second supra Court, Dist at 724-725.20 implementation It will be in its actual across the parameters state that the constitutional of Act 374 Accordingly, will be determined. I do not believe that currently any potential transforming there is basis for violations into actual violations. See Second Dist supra Court, at in which the Court held that there was no basis on the record before it for deter- mining judiciary under what circumstances the could compel expenditures beyond appropriated those undisputed because it was functioning that the court was then satisfactory at a Further, level. I note that neither the local units nor the trial courts have chal- lenged separation powers grounds. the statute on government That neither of the affected branches of Morrison, supra 693, suggested I note that that the relevant test determining violation under the federal consti exercising tution was not whether one branch was the function of another “sufficiently” deprived but whether an action one branch of control such impermissibly” Here, that it with a “interfere[d] constitutional function. I apply stringent “exercising the more and less deferential the function of another branch” test and still conclude that Act 374 is not unconstitu tional on its face under Const 2. P.J. by Opinion Markman, separation raising powers

is concerns is significant present separation evidence that there is no pow- adjudicate.21 reasons, ers issue to For these while caution and judgment imple- must be exercised in the separation powers mentation of Act 374 to avoid violations of the in sort foreseen Administrative Order 1997-6, No. I believe that the constitutional claims currently ripe raised here axe not adjudication.22 for 21Because, my judgment, unnecessary in it is to the resolution of this gaa jaa case, standing I do not address the issue whether the have separation powers claim, they urge here, to raise a as where neither of themselves, members, raising the affected branches or their individual is contrary such a claim. Given its resolution of the constitutional in issues case, majority opinion implicitly this standing concludes that such n 11, Byrd, supra, regarding importance exists. See Raines v compliance of strict standing requirement. Raines, 11, supra with the As in n US_; 864, plaintiffs alleged 117 S Ct L Ed 2d “have no injury injury they to allege themselves as individuals . . . the institutional wholly widely dispersed attempt litigate abstract and . . . and their to dispute contrary experi this at this time and this form is to historical importance ence. We [plaintiffs] attach some to the fact that have not represent allegedly aggrieved been govern authorized to branch of [the in this action . . . .” ment] accepts arguendo invalidity Even if one the facial of subsection 593a(3), that, given Wayne which declares the failure to create the County Council, Wayne County, Judicial rather than the Third Circuit Court, “employer” employees shall be the of the nonclerical of the Third Circuit, justification declaring there is little for also unconstitutional other subparagraphs Having Legisla §of 593a. reached the conclusion that the constitutionally obligated ture was to declare the circuit court “employer” employees, majority, my judgment, of its nonclerical justify striking fails to the extent to which this warrants down each of the provisions necessary recognize any §of 593a. All that would be is to “employer” portions reference to referring in other of 593a must be construed as court,” or, appropriate, Court,” to “the circuit “the Recorder’s judge” or the “chief of either court. This does the least violence to the oth (indeed, unchallenged regard erwise constitutional to constitutional ity) Legislature bargaining effort of the to extend collective of the circuit courts. This also does the least violence to the efforts of the Legislature per to authorize but not mandate the circuit court to establish policies procedures, 593a(4)(a) (b); sonnel subsections judge appoint authorize but not mandate the circuit court or the chief agent bargaining, 593a(6); provide, an for collective subsection and to employees subject bargaining process the benefit of the to the collective

Opinion by P.J. Markman, majority nonetheless addresses the provi- claims and strikes down number of majority sions of Act 374 as unconstitutional. The provisions, cumulatively, then concludes that these can be severed from the remainder of the statute and provisions that Act deleted, even with these Respectfully, question remains effective. I whether substantially Act 374 has not been so majority altered following that to sustain what is left of it contrary surgery their would be to the intent of the Legislature. majority, statutory provi-

As stated when a unconstitutional, sion is found a determination regarding severability its from the rest of the statute required. 8.5; MCL MSA2.216 states:

In the construction of the statutes of this state the follow- ing observed, rules shall be unless such construction would legislature, be inconsistent with the manifest intent of the say: that is to any portion application any If of an act or the thereof to

person or circumstances shall be found be invalid a court, invalidity remaining portions such shall not affect the applications given or of the act which can be effect without portion application, provided remaining the invalid or such portions inoperable, are not determined court to be and to this end acts are declared to be severable. personnel policy procedure process, and and that the court shall adhere policies opted appointing, supervising, to such as it has to establish in dis- ciplining, dismissing employees, subject requirements any or its bargaining agreement, 593a(8). collective subsection Notwithstanding majority opinion, 425, 29, ante the assertion in the n “suggest” any particular way, only that I 593a in be rewritten I have majority section, suggested that, is determined to recast this then if provision it would have been better for this Court have recast this in a Michigan manner that to save what we can of the Peo- statutes.” “seek[s]

ple Bricker, v 524, 529; (1973). 389 Mich 208 NW2d 172 This is a constitu- principle recognized applied our state.” Id. at 531. tional “well in and Opinion by Markman, P.J. portion

The law enforced after an invalid of an act is must be severed “reasonable view of the act as originally drafted.” Citizens Logical Alternatives Responsible & Environment v Clare Co Bd of Comm’rs, 211 Mich 494, 498; 536 NW2d 286 Michigan Supreme The Court has indicated appropriate remedy that it is for a court to a constitu- tional defect in a statute when it can do so “with no damage statutory Day to the overall scheme.” v W A Hosp, Foote Memorial 412 Mich 698, 709; 316 NW2d 712 (1982). majority’s portions excision of large 593a, of § provi-

because it finds subsection and related 593a(3) sions, i.e., subsections 593a(4)-(6), (8), (10)-(13), unconstitutional, problematic. is highly Section 593a attempts cooperative a relationship establish between the counties and in administering the courts exercising employ- courts and over their intended, any ees. It is in part, ambiguity to resolve identity concerning employer, given long history of contention dating Wayne back at least to Judges, supra, Circuit 386 Mich l.23 Because subject court administration is a matter which regarding functions intersect, light history of contention provided by 593a(9), Further clarification of this issue is subsection personnel employees which states that in shall such no event be deemed gov of the state or the state be liable for the tortious misconduct of such agents funding express ernmental or for of their contractual claims. I no opinion entity employer regarding designated the effect of which is as the employees serving entity responsi in the court on the issue of which is judgments involving employees. for court See ble tort Cameron Monroe App 681; Court, (1995), gtd Co Probate 214 Mich 543 NW2d 71 lv 454 Mich Opinion by P.J. Markman, respective regarding the branches’ roles adminis- tering logical Legislature courts, it is for the address these in the concerns context of court reor- ganization legislation. Leg- 593a, Section in which the lays plan islature out its for court administration, con- provisions significant majority tains of Act 374. The provisions § would delete most of the of 593a with- seriously evaluating Legislature out whether would have enacted Act 374 in the absence of such provisions. question provisions I whether these can damage be severed from the act “with no to the over- statutory Day, supra all scheme,” at and whether enforcement of the act after severance of most of originally 593a is “reasonable in view of the act as Logical supra drafted.” Citizens Alternatives, 498. majority-amended gives version of Act 374 no

apparent effect to the clear intent exercising involve both the local unit the court in collectively bargaining over and employees serving majority- Indeed, the court. party amended statute does not indicate at all which bargaining is authorized to enter into collective con- Additionally, by tract with at issue. removing any the local units from clear role with respect responsibilities, to these I believe that the majority inadequate giving consideration to the political processes Spe- that led to the instant statute. cifically, reorganization it is unclear whether garnered courts under Act sufficient 374 would have political support provisions setting without forth a role for the local units in court administra- altogether tion. I do not believe that this Court can v Opinion by Markman, P.J. political the realities the enact- disregard surrounding important ment of a statute where we strike down provisions seeking of the statute while to maintain viability provisions.24 remaining of the But for the judicial Not the least of the considerations involved in decisions to provisions larger sever unconstitutional from a statute is the extent to policy consequences may which unintended arise when the effectively processes branch its establishes own as an alternative to the factfinding decisionmaking processes legislative and of the branch. One problem potentially respect such arises here with to the effect of the mod public employee bargaining process. ified statute on the collective Under enacted, bargaining process PA 374 as when the collective results in agreement, legally enforceable, any contract, an that contract is like other government agencies, acting powers, legally because within their can However, enter into contracts and sue and be sued thereon. now that the majority Wayne County has removed the Board of Commissioners from equation, give jaa regard in an effort to “direction” to the gaa ing “identity any employer,” bargaining agreement of their collective merely hortatory county independently will be unless and until the agreement. decides to fund the 76th Judicial Dist Court v Teamsters Op 160; Roxborough Michigan Unemploy Local 1995 MERC Lab v Compensation Comm, 505, 510; (1944); ment 309 Mich 15 NW2d 724 (“ only ‘Public officers have and can exercise such as are con by law, by ferred on them and State is not bound contracts made in its by agents previous authority behalf its officers or without conferred ”) (citation omitted). statute or the Constitution.’ It is at the behest of the bargaining representatives employees (“the persons collective of these represented by plaintiffs presently jaa in need of direction gaa regarding identity employer,” majority 424) of their ante at that the part thereby proceeds declares the statute unconstitutional bargaining process very render the collective unsettled for the benefi Michigan College Mining ciaries of its decision. As Sittler v & Technol ogy Control, (1952), explicitly Bd 333 Mich 53 NW2d 681 estab gaa lishes, jaa anyone wishing and the —as with else to enter into a arrangement governmental agency required contractual with a —are power judge agent, county ascertain the of either the chief or his or of the representative, negotiate binding or its and execute a collective bar gaining agreement. They proceed risk, they at their if choose to conclude judge alone, provisions a contract with the chief that the economic of the county. majority’s contract will not be funded Whatever the view of powers, “power the demands of the constitutional purse” belongs exclusively 4, 1; branch. Const Michigan Regents Michigan, supra Concomitantly, Univ at 70-71. if only county involved, judge designated and the chief has not Opinion by Markman, P.J. majority adoption provisions § that the 593a it all down, strikes is not at certain that remainder adopted present of Act 374 would have been its adopted or, indeed, form that it would have been legisla- all. Evaluation of the “manifest intent of the principally ture,” 8.5; 2.216, MCL MSA while focused objective, statutory product, on the work in fair- must processes Legislature ness to the of the attempt therein, interests involved at least some rudi- mentary analysis of the extent to which the stricken provisions Legislature’sapproval contributed to the admittedly analysis may the statute. While such an prove severability often the essence of the difficult, my analysis, judgment, is whether a measure both would have and could have been adopted judicially it had been cast in its amended form. For reasons, these I do not believe that the majority adequately severability has addressed the considerably issue and am less confident than the majority Legislature that the would have enacted Act resulting 374 in the form from this Court’s action.25 county agent may court, bargain conclusively for the the unions over questions schedules, discipline, grievances, economic issues but of work personnel records, probation, hiring practices, and termination and other personnel may beyond competence matters then be of the other side. majority, 29, responds by asking ante at The n to all this rhetori- cally: Well, course, nothing problem "What is new?” at all is new. The merely Legislature something indicated that it wanted is that the new As decision, Legislature regard the result of this has been rebuffed in this process by collectively and an amended which court could bar- gain arguably, expedited process least a more effective and been —at —has replaced by quo the status ante. majority’s assertion, 422, that, Legislature ante The dis “[i]f agrees conclusion, repeal provisions remaining with our it can act,” only pro reinforces this lack of confidence. It is a much different position say Legislature adopted that the would not have a measure in Opinion by RJ. Markman, my provisions

In conclusion that the light Act joint authority employees by 374 for over the local facially are not unit and court violative of the consti- tutional and, therefore, that con- arising ripe stitutional issues under the act are not I adjudication, must address the claim regarding public employment relations act MCL 423.201 (PERA), seq.; seq. et MSA et 17.455(1) and the GAA con- jaa tend that the trial court erred in finding that 593a did principal not violate the The PERA is the state pera. public employment law regulating relations; gener- it ally prevails over laws conflicting specifi- that do not cally address collective Local bargaining. 1383, Int’l Ass’n Fire Fighters, City Warren, AFL-CIO v 411 Mich 642, 655; primary 311 NW2d 702 “A goal is to labor-management resolve [pera] strife through collective Port Huron bargaining.” Ed Ass’n v Port Huron Dist, Area School 452 Mich 309, public 550 NW2d 228 Under a pera, employer collectively must bargain representa- with employees tives of regarding hours, its and wages, employment. other terms and conditions of MCL MSA 423.215(1); 17.455(15)(1); Huron, supra Port Here, 317. and the GAA assert 593a jaa strips statutory their members of this to collec- right tively bargain over the terms and conditions of their employment. say they capable repealing

the first instance than it is to such Precisely measure it has been after amended this Court. because of difference, obligation undertaking severability analysis this it is our Legislature’s legisla- to assess the intent at the time of the enactment of Humpty Dumpty put tion not to reassure ourselves that can be together again Legislature in the form that the would have intended after we a statute. have transformed 228 Mich Opinion by Markman, P.J. argue party desig- First, jaa and the GAA that the Wayne employer, County, nated Act 374 as their mandatory subjects has no control over some of the bargaining. provides 593a(4)(b) Subsection that the county, conjunction judge, with the chief has the bargaining to make and enter into collective agreements representatives employees. of its 593a(6), county Under subsection both the and the may judge appoint agent chief an for collective bar- purposes. gaining 593a(7) Subsection indicates that judge may participate, the chief elect not to but requires Administrative Order No. 1997-6 a chief judge choosing directly participate not to in collective bargaining designate representative a of a local purposes unit to act on the court’s behalf for bargaining. choosing par- of collective Even if not to ticipate bargaining process, in the collective the chief judge’s regarding decisions individual must personnel policies be made in accordance with procedures bargaining agreement and the collective 593a(8). Upon under subsection review of this divi- authority, sion of the trial court determined that the coemployer relationship did not violate the pera because the jaa gaa did not demonstrate that coemployer relationship ability affected their rights assert and enforce their under the pera.

In St Clair Prosecutor v AFSCME,Local 1518, (1986), Michigan 233; 388 NW2d 231 Supreme recognized coemployer Court status in col- bargaining. “co-employer” lective A is treated as an employer only purposes bargaining about areas within its control. Id. n 2. In St Clair Prosecutor, coemployer concept espe- the Court noted that the is v Opinion by P.J. Markman, dally county government, relevant in matters of separately where elected constitutional officers are statutory authority given personnel to make decisions regard to their assistants. Id. at 233. The Court coemployers require determined that the fact that representative bargaining bargain unit’s with more person appear impose than one did not an undue bargaining process. burden on the collective Id. Con- trary plaintiff assertion, members of different jaa’s may government branches of be considered coem- ployers purposes for St Clair Prosecutor pera. coemployer relationship county involved between a prosecutor, who is a member of the executive branch, People Trinity, supra People v Potts, 45 Mich (1973) (partial 584, 589; 207 NW2d 170 concur- P.J.), county, rence and a which in those Holbrook, operating circumstances was within the sphere, Wayne Co, Alan v 388 Mich 210, 245; 200 NW2d 628 Moreover, as earlier discussed, that both the local unit and the court have employment inherently over matters neither violates infringes the constitutional nor powers. Accordingly, on the court’s inherent a coem- ployer relationship between two different branches facially constitutionally not infirm. county

Here, 593a, under and the court are coemployers purposes for Section 593a pera. provides roles for both the local unit and the court in bargaining; thus, is, collective there in fact, more than “public employer” purposes one of the PERA. See supra Contrary Prosecutor, St Clair at 233. to the JAA judge assertion, the chief and the court gaa’s by any bargaining agree- will be bound collective 228 Opinion by Makkman, P.J. majority merit—or at least would have before the 593a(4)(b) requires § transformed 593a. Subsection county judge that the and the chief concur in the bargaining agree- decision to enter into a collective general authority ment. Because the division of to set employment applies only personnel poli- terms of procedures cies and established under subsection 4(a), bargaining agreements not collective entered 4(b), 593a(5) into under subsection subsection does range subject not limit the of issues to collective bar- gaining. Accordingly, co-employer status set forth impose in Act 374 does not an undue burden on the bargaining process, my judgment. collective Further, the asserts that its members cannot gaa rights assert their because the court cannot be pera by bargaining agreement bound the collective under According the terms of Act 374. to the gaa, Act 374 coemployer relationship establishes a de facto Wayne County between and the court but at the same jure prohibition against recognition time creates a de relationship. 593a(9) of this Subsection states that party the “state” is not a to the contract. Plaintiff GAA clearly entity contends the court is a state under Const 1 and, therefore, cannot be rec- ognized party bargaining agree- as a to the collective goal interpreting give ment.26 The statutes is to Legislature. effect to the intent of the VanGessel v fallacy may partly of this contention be made at least clear noting employees that at no time have the of the circuit or district courts paid by warrants; they always been paid by state have been drafts or checks drawn on local accounts. A court can be an arm of the state with concomitantly requiring out regarded that court as state employees. Opinion P.J. Markman, App 37, 40; Schools, Public

Lakewood a statute provisions of Particular NW2d 248 Id. entire statute. context of the read in the should be chief judge that the states 593a(9) 41. Subsection administra- “principal is the Court the Third Circuit court,” personnel the officers tor of of a source of representative he is not although the chief states 593a(8) funding. Subsection authority in accordance his is to exercise judge Sub- bargaining agreement. any applicable collective county, “in concur- states that the 593a(4)(b) section court” appropriate judge with the chief rence bargaining agree- authority to enter into collective has by placed limits on the chief evidenced ments. As the chief requirement and the judge’s any collective bar- county concur judge clearly intended Legislature agreement, gaining bargaining the collective be bound that the courts party “state” is not though even agreements the statute does because Accordingly, the contract. collectively ability to plaintiffs’ members not limit of their terms and conditions over all the bargain and the chief and ensures that the court employment by any resulting agreement, will be bound judge my inconsistent with not, judgment, 593a PERA.27 27 not, 374 would on with the Act If Act 374 were inconsistent pera, likely Rather, alone, an amend would effect be invalid. Act 374

that basis any by implication See Washte conflict. to the extent ment pera, Comm, 663, 680; Mich 85 NW2d Service 349 Comm’rs v Public naw Co Rd Bd, Lapeer (1957); Bd v Co Social Co Social 134 Antrim Welfare Welfare Wayne (1952); Audi Co Bd NW2d 769 Atlas Mich 50 596, 599; tors, 275 NW 507 Mich Opinion Markman, P.J. reasons, I, majority, For these like the would determining reverse the orders of the trial court in both Act 374 violates the Headlee Amendment However, 201850 and Docket No. 201852. Docket No. 201852,1 part in Docket No. would also reverse the the trial court’s order that Act 374 violates the finding and I would constitutional part affirm the of the order that Act 374 does finding pera. not violate

Case Details

Case Name: Mayor of Detroit v. State

Court Name: Michigan Court of Appeals

Date Published: Jun 8, 1998

Citation: 579 N.W.2d 378

Docket Number: Docket 201850, 201852

Court Abbreviation: Mich. Ct. App.