*1 OF MICHIGAN MUSSELMAN GOVERNOR 7, 1993, January Docket 142142. at Detroit. Decided No. Submitted 19, 1993, July at 9:40 a.m. public em- Ann Musselman and other current or retired school drawing ployees the who accrued or are benefits from have System brought origi- Employees’ Public School Retirement against Appeals for the Court of the nal action mandamus in others, seeking a the State and declara- 1991-17, as it the tion that Order insofar reduced Executive Employ- previously appropriations to the School enacted Public year changed System for 1990-91 ees’ Retirement the fiscal funding of the health benefits of that the actuarial method 9, 1963, and, therefore, system, is is of Const art violative § plaintiffs sought adoption the also a declaration that void. 119, appropriated only the of PA premiums the to cover health care sufficient funds 1963, funding provisions year, fiscal also violated the Const addition, 9, plaintiffs illegal 24 and is and void. § art compelling sought a writ the defendants to School Aid Fund to Public transfer funds from Employees’ School Retirement in accordance with 9, 24. mandate of Const § Appeals The Court of held: Appeals not to order relief 1. The Court of authorized Therefore, requested. whether determination legal right prefunding health care had a clear provide legal duty or whether the defendants had a clear unnecessary. prefunding of health care benefits act, compel not 2. Mandamus will lie to the Governor to sought compelled regardless of are whether actions remaining discretionary or ministerial. Because or transfer from the authorized Employees’ Fund to Public Retire- State School Aid School References 2d, 186, Mandamus, Judgements, Declaratory 22- Am Jur §§ §§ Judgements; Jurisdiction; Declaratory See Index Man- ALR under damus. v Governor System, a writ of mandamus cannot be issued to such action. Appeals 3. The Court of cannot order the Governor to exer- particular cise his discretion under Const 20 in a *2 Legislature appropriate
manner and cannot the order funds. Appeals plaintiffs’ 4. The Court of cannot consider the under- lying request ruling for a that Executive Order is null original jurisdiction and void. The Court does not have to issue declaratory judgment. general power, a The Court’s under MCR 7.216(A)(7), any judgment grant to enter or order or further or may require permit different relief as the case does not the original jurisdiction seeking Court to take of an action a declaratory judgment. require MCR 2.605 does not the Court to declaratory judgment, general issue a because it ais rule of procedure jurisdiction. Moreover, civil and cannot confer MCR 7.203(C), supersede specific relating 2.605 cannot MCR rule jurisdiction. to the Court’s request Plaintiffs’ for a writ of mandamus is denied. J., result, concurring in the Cavanagh, stated that the term 1963, 9, "financial may benefits” used in Const art 24§ be payment premi- construed not to embrace the of health care majority’s ums. conclusion that the Court of Appeals requested by is without to order the relief any Although event is erroneous. the courts jurisdiction any performed have by no to review action power upon by Governor under the conferred him either by legislative enactment, Appeals constitution or the Court of steps in this case was asked to review taken the Governor allegedly that were in violation of the constitution. The courts regard can and will issue mandamus with to the Governor to rights enforce conferred the constitution. — Discretionary — — 1. Mandamus Governor Acts Ministerial Acts. act, compel regardless Mandamus will not lie to the Governor to sought compelled discretionary whether the actions or ministerial. — — 2. Mandamus Constitutional Law. Mandamus will not lie to the Governor to exercise discre- particular tion under Const 20 in a manner. § Appeals — — Legislature. — 3. Courts Court of Orders Appeals appropriate The Court of cannot order the funds. 200 op Opinion the Court Employ- — — School State Aid Fund Public 4. Mandamus School System. ees’ Retirement ordering Appeals issue a of mandamus The Court of cannot writ Department of Man- the Director of the State General, Superin- agement Budget, the Auditor Instruction, Employees’ or School of Public the Public tendent appropriate transfer funds from Retirement Board to or Employees’ Aid Retire- State School Fund to Public School parties have the those do not because such and transfer funds. op Appeals — Declaratory Judgments — 5. Court Jurisdiction. jurisdiction Appeals original have to issue The Court of does not declaratory judgment; general to enter Court’s judgment grant or order or different relief as further original require permit the Court take case does (Const seeking declaratory judgment jurisdiction action 6, 10; 600.308; 7.203[C],7.216[A][7];MCL MSA MCR 27A.308). — — Declaratory Judgments — Court Rules Jurisdiction Specific — Rules. Rules General *3 general regarding declaratory judg- procedure The rule of civil Appeals jurisdiction to the Court of ments does not confer on originating declaratory judgment in the an action issue Appeals; general supersede rule does Court of specific jurisdiction Appeals relating of the Court of rule to (Const 6, 1.103, 2.605, 1963, 7.203[C]). art MCR Przybylowiez, & White, Beekman, Schneider (by Baird, Bush A. White and Karen P.C. James Schneider), plaintiffs. for the Kelley, Attorney General, L. Thomas
Frank J. Moquin, Casey, General, and Michael J. Solicitor Nelson, Kron, Assistant C. and Walter V. Thomas Attorneys General, defendants. Cavanagh Reilly, P.J.,
Before: Corri- and and gan, JJ. original action, P.J. this Reilly, challenge
plaintiffs
legality
of Executive Order
Plaintiffs are who are individuals either current public employees or retired school who have ac- drawing crued System. from benefits the Retirement PA 300, amended, as MCL 38.1301 et 15.893(111) seq.; seq. MSA et Plaintiffs seek 1991-17, declaration that Executive Order insofar previously appropria- as it reduced enacted System tions to the Retirement for the 1990-91 year changed fiscal funding and the actuarial method system, health 1963, 9, § and, therefore, violative of Const art is void. Plaintiffs also seek a declaration that adoption by of 1991 PA appropriated only sufficient funds to cover health premiums year 1991-92, care the fiscal also funding provisions violated the of Const illegal Finally, 9, § 24 and void.
request that this Court issue a writ of mandamus compelling transfer funds from the Aid School Fund the Retirement with accordance the mandate of Const 9, § general 1991-17,
Executive Order which reduced fund-general purpose expenditures fund for year by $178,914,737, 1990-91 fiscal was issued on approval majority 18, 1991, June after of a of both Appropriations the House and Senate Committees. portion of the executive order that affects System provides, available the Retirement *4 pertinent part: Employees System e. Public School Retirement (1) appropriations public The to the school em- ployees system retirement from the school aid 200 Opinion op the Court
fund,
of the Public
by Act 214
provided jointly
as
Acts of
of the Public
Act 357
of 1990 and
Acts
$53,795,700
GFGP/
reduced
hereby are
Gross)
($55,773,300
result of
as a
Aid Fund
School
the
the Public
retirement
41(2)
300 of
of Act
following
of section
revision
employees
(public school
Acts of 1980
1979)
amended:
act
as
41(2)
SECTION
(2)
payable
benefits
contribution rate for
retire-
a member before
the death of
the event of
a member shall be com-
disability
ment or
puted
using
funding method of valua-
terminal
a
benefits,
in-
other
contribution rate for
tion. The
using
benefits,
computed
shall be
cluding health
age
entry
normal
projected benefit
an individual
cost
valuation,
method of
1990-91 state
YEAR,
RATE FOR HEALTH
THE CONTRIBUTION
FISCAL
A
DIS-
CASH
SHALL BE COMPUTED USING
BENEFITS
original.]
[Emphasis in
method.
BURSEMENT
adopted by
on
PA 119 was
provision appropriated
11, 1991. That
October
funding
care
health
for the Retirement
year
on the basis
in the
fiscal
premium
disbursement,
disbursement,
i.e. cash
method.1
1991-17 was issued
Executive Order
At the time
41(2)
enacted, §
of the retire-
rate age entry projected normal benefit an "individual 38.1341(2); MSA MCL method of valuation.”2 cost 15.893(151X2). you "pay as health disbursement method as Plaintiffs describe cash method, only pay go” funds needed to Under this method. year premiums for the current fiscal incurred care benefits year. appropriated for that 15.893(151X2) subsequently 38.1341(2); amended was MCL MSA part: provides, pertinent PA subsection, provided rate Except in this contribution as otherwise benefits, benefits, computed using including shall be health for other *5 Opinion op the Court argue change Plaintiffs in the method funding age entry health from benefits normal cash method disbursement method light was unconstitutional of the mandate of provides: § 24, Const art which pension The accrued financial each plan system and retirement of the state and its political obliga- subdivisions shall be a contractual tion thereof which shall not be diminished or impaired thereby. arising
Financial benefits on account of service year rendered in during each fiscal shall be funded year funding and such shall not be used for financing unfunded accrued liabilities. parties funding
All the provided by refer to the method of "prefunding” 9, § 24 as and ac- knowledge that the cash method disbursement requirements satisfy 9, § does not of art argue 9, § that art 24 does apply because health care benefits are not "accrued financial benefits” or "financial benefits arising on account of service rendered.” Defen- provisions dants assert that the of Executive Order reducing expenditures Sys- for Retirement justified pursuant tem health benefits were provi- 5, Const 20. That constitutional sion declares: appropriation spend. No shall be a mandate governor, approval appropriat-
The ing with the of the senate, committees house and shall expenditures reduce by appropriations authorized appears it whenever that actual revenues for a period fiscal fall will below the revenue estimates projected entry age an individual benefit normal cost method of year, valuation. For the 1992-93 state fiscal health for contribution rate computed using be benefits shall a cash disbursement method. Opinion op the Court period were appropriations on expenditures shall be made Reductions in based. prescribed by law. procedures accordance with legis- expenditures of the governor may not reduce from consti- judicial branches or lative and tutionally specific purposes. dedicated *6 of the we positions parties, Having stated to must determine whether we have the grant plaintiffs’ request for relief. This action in original an action this Court is 600.4401(1); MSA 7.203; to MCR pursuant MCL 27A.440K1). extraordinary and is remedy
Mandamus is is, terms, there in only practical when remedy, legal equitable, might or that no other v Bureau Delly achieve the same result. 260; Lottery, 183 454 141 Mich NW2d (1990). relief, Before this Court will order such (1) legal plaintiff right must a clear to establish performance sought of the specific duty (2) legal compelled, that the defendant has clear (3) act, to such the act to be duty perform Id. at compelled is ministerial. Mandamus will not lie to control the exercise or direction of official or public discretion is vested in a Dep’t Teasel v of Mental administrative body. Health, (1984). 390, 410; 419 75 Mich 355 NW2d plaintiffs need not determine whether had a
We
"prefunding”
clear
to the
health care
legal right
legal
had a clear
whether
provide
"prefunding”
of health
duty to
this
without
to
benefits because
Court
requested
in
by plaintiffs
order
the relief
Michigan
has held
Supreme
event.
Court of
lie to
compel
that mandamus will not
Gover-
act,
regardless
of whether
actions
nor
be
or minis-
sought
compelled
discretionary
Governor,
terial. Sutherland v
(1874);
the Governor
to exercise his discretion under
particular
5, §
in
Const
We
manner.
provide
remedy.3
it
Furthermore,
cannot
such
is
Reilly
part
Judge
acknowledges
opinion concurring
in
in her
dissenting
App
part
Speaker
in
and
in House
195 Mich
(1992),
agreed
majority’s
Although compel we cannot case, in the executive and to act this government are not free to of legislative branches powers. As Justice Cooley or their usurp abuse explained in Sutherland: powers have been government is one whose Our de-
carefully apportioned between three distinct partments, which emanate alike people,
from the limited and defined powers their alike have constitution, their equal dignity, are and within independent. spheres equally of action respective One makes contested laws, applies the another laws cases, must that the the third see while accepted as a This division laws executed. very governments, and necessity in all free department un- to one apportionment its exercise prohibition to be a derstood either of the others. The executive is forbidden implication judicial power by the same exercise upon to take themselves the courts forbids his duties. departments It that neither of the can is true others,
operate respects independently all are called the checks and balances and of what each a restraint on government constitute rest, . . ._ sought declaratory injunctive relief. Mandamus was not and Nevertheless, researching thoroughly after an issue in that case. Reilly that, Judge opinion presented this is of the issue pursuant herein, cited this Court is without to the enjoin the actions of *8 Reilly Judge contrary suggestion continues to to the was error. Speaker expressed in in House the other views her dissent adhere to Governor, supra. v Governor. Opinion of the Court But in each of these cases the action of the controls, modifies, department manner or in another, that of strictly influences is had sphere, within its own gives and for reason no conflict, occasion for controversy jealously or [sic]. courts, prescribing in rules acting proper province making is laws, within its courts, declining while the to enforce law, acting unconstitutional are in like manner province, proper within their they because are only applying that which is law to the controver- sies in which they upon give are called judg- by is mainly ment. It means and of these checks balances that depart- officers of the several kept jurisdiction, ments are they within their if and case, disregarded in any are is abused, usurped or remedy by impeachment, department and attempting government not another wrong by asserting
to correct superior authority over that which the constitu- equal. [Sutherland, tion is its supra at 324-325.] that, We also conclude under the circumstances presented in this issue against the remaining defendants. Plaintiffs ask us transfer additional funds from the State School Aid Fund the Retirement in order to cover prefunding of health care bene- However, plaintiffs fits. have not and our provided, revealed, research has not support finding defendants, that any remaining of the Department Director of Man- agement General, and Budget, the Auditor Schools, Superintendent the Public Board, School Employees’ empow- Retirement ered with the to or transfer from the State School Aid Fund Retirement System. disagree Kosa,
We plaintiffs’ with assertion that Kosa, supra, controlling this case. this *9 App op Opinion the Court requiring the of mandamus issued a writ Court Employees’ Board to Retirement Public School perform legal duty, i.e., the inter- to cease a clear using pay practice current service funds to nal of pension con- benefit liabilities accrued unfunded trary 78 to Const 9, 316. 24. § acknowledged it not did this Court requiring enter a writ the have the Legislature appropriations of nonconsti- to reduce tutionally protected mo- items order to create funding proper the Retire- nies to the of insure Supreme System. Kosa, In the Court deter- Appeals properly issued mined that the Court of legislation board, had the writ the but because subsequently ensured that enacted been met, the writ was held mandate of art was 9, 24 § longer necessary. no 408 Mich 383. We concurring opinion’s that, case, in this believe Supreme language Court in reliance on the support Kosa to conclusion that misplaced. may against the The issue Supreme reviewing Court was the action execu- but the actions of members tive branch. presented circumstances Kosa are differ- presented Kosa,
ent from those retirement board was in this case.
using already allo- System in manner con- to the Retirement to the mandates of Const cated trary proper remedy Thus, was for this Court compli- carry out its duties order ance with ever, board to requirements. How- constitutional in the in this seek increase appropriated of funds to the Retirement amount System Fund* The from the State School Aid Superintendent board, the State retirement Schools, do executive branch defendants appropria- make such an not have the v Governor Opinion op the Court tion. cannot We these do they that which have no to do. There- deny request fore, we for mandamus.
Having conclusion, reached that we must deter- plaintiffs’ mine whether this Court underlying consider request ruling for a that Executive Order is null and void. We conclude we cannot.
Although plaintiffs declaratory seek a form of *10 they declaratory judg- relief, have not asked for a sought ment. The ultimate relief is a mandate to compel defendants to transfer funds to the Retire- System. original jurisdiction
This Court has
over extraor-
dinary
jurisdic-
writs,
mandamus,
such as
but the
discretionary.
600.4401(1);
tion is
MCL
MSA
7.203(C)(2).
27A.4401G);
original
MCR
We have no
jurisdiction
declaratory judgment.
to issue a
Const
6, §10;
600.308;
MCL
27A.308;
MSA
7.203(C).
general
MCR
power
doWe
not believe the
7.216(A)(7)
judg-
any
under MCR
to "enter
grant
ment or order or
further or different relief
require”
permits
as the case
this Court to
original jurisdiction
seeking
take
of an action
a
judgment.
7.316(A)(7).
declaratory
Compare
Compare MCR
Wayne
Judges Wayne
also
Co,
Circuit
(1969),
10, 19-20;
383 Mich
Where, particular by as in this result is commanded 200 by Cavanagh, J. Concurrence procedure, rule general rule of civil it is a jurisdiction. 6, § 10. 1963, art Const confer cannot Moreover, 7.203(C), supersede MCE rule cannot relating specific to this rule is the Consequently, jurisdiction. we MCE 1.103. Court’s request plaintiffs’ declara- to address decline tory relief. request of mandamus a writ
Plaintiffs’ denied. J., concurred.
Corrigan, (concurring). the re- I concur J. Cavanagh, only majority I am because reached sult convinced did of the constitution the framers they premiums mind when care not have health adopted Consequently, 9, §24. 1963, art Const that does not benefits” of "financial definition premiums payment care of health embrace problem. present a constitutional would majority’s disagree, conclu however, with I authority to order Court is without that "this sion the relief by plaintiffs requested event.” majority cited The three cases Ante at 662. *11 proposi support all stand for the this conclusion to tion tion jurisdic "have no of this state that the courts governor performed by any action to review by upon power him either conferred under legislative Born v Dill enactment.” Constitution (1933); 440, 444; 250 282 man, NW 264 Mich 585, 588; Governor, 176 Mich NW Germaine v (1913); v Sutherland law, Supreme adjective principles Court has well-settled procedural, jurisdictional, barriers let alone that even indicated will not stand achieving proper way outcome. in the Further, not read this dicta. we do this statement We believe jurisdiction ruling assume this Court as a statement not conferred by law. v Governor by Cavanagh, J. Concurrence (1874). setting, possibility In such a legislative de- the executive and government collision between partments grave is of concern. supra Dillman, at See asked to
However, in this we have not been that was under action of the Governor review upon him either conferred taken under legislative enactment. We were the constitution or steps by the Governor that to review taken asked allegedly in violation of the constitution. were regards Executive, context, . . . the "[a]s mandamus to enforce courts can and will issue rights the 1963 Constitution.” Kosa conferred 292 NW2d (1980).