Rohde v. Ann Arbor Public Schools

479 Mich 336 336 ROHDE v ANN ARBOR PUBLIC SCHOOLS (Calendar 4). Argued January 2007 Decided Docket No. 128768. No. July 25, 2007. taxpayers Teri Rohde and other resident in the Ann Arbor school brought against district an action the Washtenaw Circuit Court Schools, the Ann Arbor the Board of Education for the Ann Public Schools, president Arbor Public and the and treasurer of the board, challenging expenditure public the schools district’s provide funds to health insurance benefits to same-sex domestic employees alleging partners expenditure of school and that such marriage violates MCL which defines to exclude same-sex 551.1, Association, MEA/NEA, unions. The Ann Arbor Education was allowed to intervene as a defendant on behalf of its members. The court, Swartz, J., granted trial David S. the defendants’ motion summary disposition, concluding plaintiffs had not treasurer, brought their action on behalf of or for the of the benefit required comply had 129.61, as MCL and failed to with the requirement they of that statute that must first demand that the bring Appeals, Cavanagh, EJ., treasurer suit. The Court and judgment Gage, JJ., affirmed the of the trial court. Jansen App Although Appeals disagreed (2005). Mich the Court bring with the trial court that the had failed to suit on treasurer, behalf the Court of nevertheless affirmed plaintiffs’ the dismissal of the lawsuit on the basis that the letters officials, governmental sent to the board of education and other General, including Attorney requesting they halt the illegal public satisfy specific- use of funds were insufficient to requirement plaintiffs sought demand 129.61. The leave to Court, appeal Supreme Supreme in the and the Court ordered the argument grant applica- clerk schedule oral on whether to tion, asking parties only to address the issue of what consti- tutes an effective demand under MCL 129.61. 474 Mich hearing argument, Supreme granted (2006). After oral asking appeal, parties regarding leave to to submit briefs bring whether the had their action. 477 Mich Rohde v Ann Arbor Public Schools opinion by joined by In an Chief Justice Justices Taylor, Supreme Court held: Corrigan, Young, Markman, plaintiffs’ containing “request” govern- letters that the illegal mental officials halt the use of funds were sufficient satisfy requirement the “demand” of MCL 129.61. The Court of Appeals holding erred in that the letters did not constitute a However, plaintiffs demand under MCL 129.61. the lack constitu- standing plaintiffs tional to sue the because lack a concrete and particularized fact, injury judgments and therefore the of the Appeals trial plaintiffs court and the Court of that held that the proceed could not with their lawsuit must be affirmed and the matter entry must be remanded to the trial court for the of an dismissing plaintiffs’ order the lawsuit. Although plaintiffs 1. the did not use the word “demand” in letters, “request” their properly their considered a “demand.” plaintiffs required The were not to use the word “demand.” All required that is reasonably is a communication that would be understood as a demand. require 2. MCL 129.61 does not that the demand refer to the statute, specifically that the demand accounting must be for an or recovery funds, the convey that urgency, the demand a sense of or that the demand be for a lawsuit. 3. MCL 129.61 is unconstitutional to the extent that it confers standing taxpayers on three-part who do not meet the test for determining party whether a standing. has constitutional The irreducible standing constitutional minimum of contains three First, plaintiff elements. injury the must have suffered an legally protected fact—an invasion of a interest that is concrete particularized imminent, conjectural and actual or not hypothetical. Second, there must be a causal connection between injury the complained and the injury conduct of—the has to be fairly challenged traceable to the action of the defendant and not independent the result of the party action of some third not before Third, likely, the court. opposed merely specula- it must be as tive, injury that the will be redressed a favorable decision. judicial power 4. The definition of in the federal and the state require injury constitutions an in fact that is both concrete and particularized, imminent, as well as actual or in order to establish standing. Legislature may jurisdiction The upon not confer the any genuine courts controversy. unmoored from case or Legislature may 5. standing party not confer on a injury-in-fact does not otherwise meet the constitutional test for [July- Mich however, Legislature may qui standing; create tam actions government’s injury-in-fact partially assigns whereby a statute private claim citizen. to a qui tam an action 6. does create action or MCL 129.61 constitutionally qui enough confer similar tam action plaintiffs. standing on the injury-in-fact ehminate 7. rule or statute can No court standing. requirement for constitutional Kelly, concurring, agreed to affirm with decision Justice plaintiffs satisfy decision did not because requirements In an the demand of MCL 129.61. order to make 129.61, plaintiff party under MCL must ask effective demand accounting responsible maintaining a suit for an or the letters, unlawfully spent plaintiffs’ recovery funds. The which investigation requested only expenditures, a halt of future However, satisfy requirements 129.61. Justice failed to of MCL analysis disagreed majority’s Kelly with the issue majority ignored because the law confers constitu- federal municipal taxpayers tional on like the in this case. concurring only, agreed in the result with Justice Cavanagh, require- not meet the Kelly

Justice did demand Accordingly, Appeals properly ments of MCL 129.61. case, plaintiffs’ no the dismissed the and there is need to address standing. issue of remanded trial court. Affirmed and to the part, concurring part dissenting in in Justice WEAVER, majority agreed plaintiffs that the satisfied the demand with 129.61, requirement disagreed plaintiffs that lack of MCL but majority’s standing, standing. The test for based on the federal Constitution, doctrine, Michigan supported by standing is not ability grant standing Legislature’s which does not restrict to Michigan to the citizens of this state. The Constitution contains no Const, III, judicial corollary § art limits to US which the federal majority’s power opinion reads to cases controversies. Michigan language in into the order to conclude that Constitution unconstitutional, power MCL is and thus takes a 129.61 valuable away people Legislature of this from the and the state. Under the applied standing, grants to 129.61 traditional test determine MCL standing parties requirements. that Because to meet the statute’s they respect requirement, did so with to the demand challenge expenditure have the school district’s of public domestic-partnership funds for same-sex benefits. While Public Rohde v Ann Arbor Schools Opinion of the Court to meet judgment of that the failed of the Court reversed, requirement the matter should should be the demand to the trial court to decide the substantive issues not he remanded instead, by plaintiffs; this case should be held raised abeyance Supreme Court resolution of the issue of same- for the Work, Governor, Mich See Nat’l Pride at Inc v sex benefits. (2007), gtd App 147 lv 478 Mich 862 Standing. - - by Taxpayers Law Suits Constitutional 129.61, provides, part, any person paying taxes to which political may equity on unit institute actions at law or behalf accounting political or the treasurer of the subdivision for an moneys misappropriated unlawfully expended by recovery subdivision, public political is unconstitutional to the officerof the taxpayers extent that it on who do not meet the confers three-part determining party whether a has constitutional test for requires plaintiff standing; standing that the must have suffered fact, injury in there be a causal connection between the of, complained likely, injury and the conduct and that it is not injury speculative, will be a favorable addressed decision. Gillen) (by T. for

Thomas More Law Center Patrick the plaintiffs. Cameron, Jr., PLLC James M.

Dykema (by Gossett Wheaton, Heflin) M. and Cara J. Edwards for the Jill defendants. and Theresa J. Alderman

Arthur R. Przyhylowicz defendant. intervening TAYLOR, issue in this case is whether a C.J. The first taxpayer public to a official that letter sent a resident and halt” the use “investigate the official “request[s]” illegal purposes adequate funds for public to MCL 129.61 so as to pursuant constitute a “demand” act, should the official taxpayer, allow the challenge expenditure to the legal undertake a conveys a a conclude that letter public funds. We Having constitute a demand. call to act is sufficient to 479 Mich 336 Opinion of the Court the plaintiffs’ concluded that letters did constitute a contemplated by 129.61, demand as MCL we are re- quired to consider whether have constitu- tional pursue lawsuit authorized they statute. We conclude that not and do hold that MCL 129.61 is unconstitutional extent confers on taxpayers who do not meet test for three-part determining whether a party has standing. constitutional

Although disagree we part with that of the Court of Appeals opinion that determined that plaintiffs’ letters did 129.61, not constitute a demand under MCL on the basis that the lack constitutional standing to sue, we affirm the lower judgments court that held that plaintiffs could proceed with their lawsuit.

I. PACTS AND PROCEDURAL HISTORY Plaintiffs are Ann Arbor public school district tax- payers brought who suit to challenge the school dis- expenditure trict’s of public funds to provide health insurance benefits same-sex partners domestic school employees. Their complaint alleged that expenditure of public purpose funds for that violates 551.1, MCL which defines marriage to exclude same-sex unions.1 filing lawsuit, Before their several of the plain- provides: MCL 551.1 Marriage inherently unique relationship between man public policy, special and woman. As a matter of this state has a encouraging, supporting, protecting unique interest relationship promote, among goals, in order to stability other society marriage and welfare of and its A children. contracted

between individuals of the same sex is invalid this state. 551.271, At the same time MCL 551.1 was enacted provides recognition marriages which states, contracted in other was amended to state: Public Schools Ann Arbor Rohde v Opinion the Court mem- various school board letters to tiffs sent identical officials, including the local and state bers and other General, Gov- and the Attorney county prosecutor, Each letter stated: ernor. you investigate halt the request that and

I write to [We] partner- provide so-called “domestic public funds to use of public employees of the Ann Arbor ship” benefits extension that the School District’s [We] I believe schools. authority employees exceeds its of these benefits to its marriage. governing [We] I ask that violates the state law your earliest illegal use of funds at you halt possible convenience. Association, Education the Ann Arbor

After behalf of its MEA/NEA, as a defendant on intervened marriage apply between to a contracted section This does sex, marriage in this is invalid the same which individuals of 551.271(2).] [MCL state.... 551.272, provides: which at the same time was Also enacted inherently unique recognizes marriage a rela- as This state woman, by prescribed [MCL tionship as a man and a between 551.1], marriage a man and that is not between therefore a regardless of whether the in this state woman is invalid juris- according marriage laws of another to the is contracted diction. filed, effective December after this lawsuit was It is also the case that people 1963, 1, 18, 2004, § 25 was added vote Const art

provide: society marriage for our preserve the benefits of secure and To children, man and generations the union of one and for future agreement recognized only as marriage shall be the one woman any purpose. marriage similar union for opinion holding recently published Appeal issued The Court of offering same-sex health-care 1, public employers from § art 25 forbids on that Court was denied A motion for reconsideration benefits. Governor, Work, App at Inc v 2007. Nat’l Pride March (2007), gtd 478 Mich 862 lv 732 NW2d 479 Mich op Opinion the Court members, summary disposition defendants moved for 2.116(C)(5) (The pursuant to MCR party asserting the sue.). legal claim lacks the capacity to The trial court granted motion, determining failed to their suit bring on behalf of the school district trea- surer. The trial court also ruled that plaintiffs’ letters comply failed to with the they statute did not make a “demand.” appealed,

Plaintiffs and the Court of af- published firmed in a opinion.2 Although the panel disagreed with the trial court that the plaintiffs had failed to bring treasurer, suit on behalf of the the Court nevertheless affirmed the dismissal of the plaintiffs’ lawsuit agreed because it that plaintiffs’ requests to the board of education and governmental other officials they halt the “illegal use of public funds” were satisfy insufficient the statute’s specific-demand re- quirement.

Plaintiffs filed an application for leave to appeal in this Court. We first ordered oral argument on whether grant application or take other peremptory action pursuant 7.302(G)(1), to MCR asking parties only address the issue of what constitutes an effective demand Thereafter, under MCL 129.61.3 granted we leave to appeal, asking parties to brief whether standing.4 had

II. STANDARDS OF REVIEW We review de novo a grant or denial summary disposition. Nastal v & Henderson Assoc Investigations, 2 Schools, App 702; Rohde v Ann Arbor Pub 698 NW2d 402 (2005). 3 (2006). 474 Mich 1120 4 (2006). Mich 477 924 343 Arbor Public Schools Rohde v Ann Opinion op the Court (2005). 712, 720; Whether Inc, Mich 691 NW2d MCL a “demand” under constituted letters plaintiffs’ statutory interpretation. We matter of 129.61 is a de novo. statutory interpretation questions review 27, 30; NW2d 341 Miller, 474 Mich Miller v OF MCL 129.61 III. ANALYSIS letters whether question plaintiffs’ to the As relevant 129.61,5 statute a demand under constituted is insti “Before such suit part, in relevant provides, officer, shall be made on the a demand tuted be to maintain duty may or commission whose board to take action by neglect or refusal suit followed such in relation thereto.” the term “demand” noted that

The Court of College Random House Webster’s in the is defined (1997) authority; with proper as “to ask for Dictionary “main- statutory phrase right,” as a claim reads as follows: The full statute any corporation, Any person persons, firm or resident or unit, may district, political paying such township taxes to or school equity behalf of or for the at law or in on institute suits or actions subdivision, political of such benefit of treasurer moneys misappropri- recovery accounting of funds or and/or officer, any public unlawfully expended by board or ated political such suit is subdivision. Before commission of such officer, board or be made on the a demand shall instituted may duty to maintain such suit followed be commission whose Security by in relation thereto. neglect take action a or refusal to any by plaintiff such suit or for costs shall be filed paid expenses of the same shall be all costs and or action and recovery a instituting unless and until person persons the same or such moneys as the result of or he obtained of such funds proceedings. (8th ed) “[t]he Dictionary “demand” as assertion defines Black’sLaw legal definition procedural right.” consistent with the legal This is of a 479 Mich 336 Opinion

tain such suit” indicates that “the of the purpose demand is to inform the requirement appropriate party that legal forthcoming.” action is 265 Mich atApp 710. It plaintiffs’ then concluded that did not letters consti- tute a they “demand” because were “merely request that the alleged misappropriation they are stop; not a legal demand for action.” Id. disagree

We with Court of analysis that plaintiffs’ “request” conclude was sufficient to satisfy Indeed, “demand” requirement. statute’s request the Attorney General halt something as- illegal serted to be only reasonably understood, can be in the context of a demand to the state’s top legal officer, as a demand that he or steps she take to stop such up actions to and including bringing a lawsuit. While plaintiffs did use the word “demand” in their letters, their “request” is properly considered a “de- mand.” Plaintiffs required were not use word All “demand.”7 that is required is communication that would reasonably be understood as a demand. We agree with plaintiffs civil, that utilization of the more polite term “request” is more likely to secure the desired result halting expenditure unlawful than a more provocative all, “demand.” After the apparent object of the statute is to halt unlawful expenditures, not to engender litigation. letter,” of a party “demand which explains is: “A letter which one its legal position dispute requests in a recipient take some (such paying money owed), being action as or else risk sued.” Id. 7 See, e.g., Co, Wayne Shallal v Catholic Social Services 455 Mich (1997) (“A 604, 616; plaintiff required NW2d 571 should not be say “magic reap protections words” in order [whistle- statute.”). protection] blowers’ Twp Dep’t Cf. Burt Natural (1999) (“[W]e

Resources, 659, 669; 593 NW2d 534 decline to require Legislature any particular use talismanic words to intent.”). indicate its Arbor Public Schools Rohde v Ann Opinion of the letters were claim that defendants’ reject We MCL the statute. they failed to cite because insufficient the demand refer that requirement no 129.61 includes argue plaintiffs’ also that statute. Defendants to the require- the demand to meet insufficient letters were an either request did the letters ment because MCL expended. funds recovery or the accounting “for may file a lawsuit taxpayer a that provides 129.61 moneys recovery of funds or accounting and/or The ....” unlawfully expended misappropriated taxpayer’s statute, however, provide does not for an ac- be specifically must demand preliminary funds. recovery of counting or letters were argue plaintiffs’ further Defendants because requirement demand to meet the insufficient urgency, a sense they did not contain until almost by filing them lawsuit upon did not act require that MCL 129.61 does not later. But years three Plain- urgency.” “sense of be made with a the demand funds expenditure public to the requested tiffs halt is a phrase This possible earliest convenience.” your “at possible. as It is action be taken as soon request requirement is no because there especially sufficient urgency. a sense of convey that the demand the statute sugges- the Court of disagree also with We litigation. a demand for requires tion that 129.61 may insti- taxpayer that before a provides The statute “on the lawsuit, public must be made a demand tute duty may it be to officer, whose board or commission unlawfully ex- recovery for such suit” maintain require expressly does not The statute pended funds. Further, just because be for a lawsuit. that the demand bring a lawsuit duty the ultimate body has must be demand not mean that the if is needed does minimum, demand, at a taxpayer a lawsuit. 479 Mich 336 Opinion of the Court calls on a public body conscientious to reevaluate whether carrying and, fact, it is out its properly duties this may public body’s result in the acting compliance with the may by any means, demand. It do this number only one fact, of which is to enter into litigation. In when the statute uses phrase duty “whose it may be to maintain such (emphasis added), suit” it recognizes Moreover, this. provides demand, statute that after a before the taxpayer may suit, bring precondition that public body must neglect or refuse “to take action in relation thereto.” This implies that body need not suit, file necessarily only that it needs to take some kind of action relating to the matter.8

We therefore conclude that the demand made in this matter was sufficient to satisfy MCL 129.61.

IV CONSTITUTIONAL STANDING Having determined plaintiffs’ letters satisfied the requirements 129.61, of MCL we are required to decide whether plaintiffs have constitutional pursue to is, their lawsuit. That even though have we determined that plaintiffs are authorized the Legislature to bring lawsuit, we must determine whether independent constitutional requirement of standing presents a sepa- rate bar to the lawsuit. reject We also required Court of dictum that were treasurer, to send the demand to the likely school district as “the officer

responsible maintaining App such a lawsuit.” 265 Mich at 710. There is no indication in the specifically statute that the demand had to be served on treasurer, opposed key figures as to other in the school district. MCL provides officer, 129.61 that the “public demand must be made on the board duty may or commission” whose it language be to maintain the suit. This board, makes specific it clear that demand aon rather than one member of (such treasurer), Here, the board as is sufficient. sent letters to all nine members of superintendent. the school board as well as the This was give sufficient to the school district and the treasurer notice of the demand. Public Schools Arbor v Ann Rohde Opinion the Court of Co Bd v Macomb Lee First, as we stated of (2001): 726; 629 NW2d Comm’rs, 464 Mich in Michi- initially, recognize to important, It is great standing is of system, federal gan, as in the imperil neglect of would consequence so that pow- whereby governmental constitutional architecture govern- the three branches between ers are divided ment. prin- standing [is] a constitutional

“[T]he doctrine undertaking tasks of law from ciple prevents courts courts It is the role of assigned political branches. claimants, or class in individual provide relief to suffer, imminently suffered, actions, or will who have courts, harm; but that it is not the role actual govern- branches, shape the institutions political and the comply with the laws in such fashion as to ment 735-736, Casey, quoting Lewis [Id. at Constitution.” (1996) 2174; 343, 349; 135 L Ed 2d 606 116 S Ct 518 US omitted).] (citations Su- United States the test the adopted

In Lee we court a federal determine whether Court uses to preme and concluded: standing to hear lawsuit9 has “ignored” the United States that we have asserts Justice Kelly 447, Mellon, v 262 US in Massachusetts Supreme statement Court’s “ (1923), 597; ‘[t]he interest of 486; that 67 L Ed 1078 43 S Ct moneys application direct and municipality of its is taxpayer in the of a remedy by injunction prevent misuse is not to their and the immediate ” First, light in this statement is dictum inappropriate.’ at 363. Post have that it did not Supreme determined Court the fact Second, Justice challenges in Mellon. jurisdiction raised to hear the later, Supreme that, just sentences ignores two the fact Kelly See, example, contrary. to the that “there are decisions Court noted Mellon, supra 540, at 486. In Grandy, [1865].” v 13 Mich Miller overruled, private “a Miller, this Court held that been has never which proper special grievance, even a suffering is not payer, under no tax Miller, . .” misconduct. . party restrain threatened a bill filed to to MICH336 Opinion

“[T]he irreducible constitutional minimum of First, plaintiff three contains elements. must have suf ‘injury fered an legally protected fact’ —an invasion of a (a) (b) particularized, interest which is concrete and ’ imminent, “conjectural” or “hypothetical.” ‘actual or Second, injury there must be a causal connection between the complained injury and the conduct of—the has to be ‘fairly... challenged trace[able] to the action of the defen dant, and independent th[e] [of] not... result action of. party Third, some third not before the court.’ it must be ‘likely,’ opposed merely ‘speculative,’ injury as to that the will ” [Lee, be ‘redressed supra a favorable decision.’ at quoting Lujan Wildlife, 555, 560-561; 504 US Defenders of (1992).][10] 112 S Ct 119 L Ed 2d 351 And, as explained we in Nat’l Federation v Wildlife Co, Cleveland 608, 622-623; Iron Cliffs (2004): NW2d 800 Legislature If the permitted were at its discretion to confer jurisdiction upon any genuine Court unmoored from case controversy, or this Court would be transformed in character empowered historically decide matters that have been purview within the of the Governor and the executive branch----Unless there personally is individual who has injured by been the Governor’s enforcement or administra- laws, tion of normally these it is not judicial the role of the branch to monitor the work of the executive and determine carrying whether it responsibilities out acceptable its in an supra Therefore, “ignore” because, at 550. we dicta from Mellon its terms, inapplicable determining judicial own it is scope power Michigan. 10 Lujan, Supreme In United States Court held bring lacked provision constitutional suit under a Endangered Species provision Act of 1973 that contained a citizen-suit permitted “any person [to] commence a civil suit on his own (A) enjoin any person, including any the United States and behalf — governmental instrumentality agency other alleged ... who is to be in any provision 1540(g)(1). violation of of this act....” 16 USC The Court provision in effect held applied this was unconstitutional as to a standing. citizen who lacks constitutional 349 Arbor Public Schools Rohde v Ann Opinion op the Court acqui- Legislature perhaps even with the fashion. That — purported impose to this role of the executive —has escence judicial this constitutional upon the branch does not alter reality. that but a few we explained

In Cleveland Cliffs “judicial the definitions of exceptions, enumerated Michigan the United constitutions States power” in fact” that is “injury an require are identical —both or as well as actual particularized, both concrete imminent, standing. to Id. at 624-629. order establish jurisdiction upon not confer Legislature may contro any genuine case or court “unmoored from so, If were to do Legislature ....” Id. at 622. versy in character and be transformed “this Court would historically to decide matters that have empowered the Governor and the purview been within Id.12 executive branch.” 1963, 3, Legislature § house of the to art 8 allows either Const advisory opinion Supreme on the

request to an Court issue 1963, 9, upon § “constitutionality legislation”; art 32 confers Const bring enforce the “[a]ny taxpayer suit to of the state” Amendment; 1963, art and Const provisions Headlee of the so-called proceedings for empowers “any the state” to initiate § citizen of injunctive the civil service laws of mandamus relief to enforce or state. Comm, See, also, Co v Oakland Co Rd Federated Ins statutorily (2006), the issue of where we discussed 715 NW2d and MCL 14.28 standing. held that MCL 14.101 This Court conferred appeal give Attorney intervene to did not General Attorney Appeals judgment, General did because Court of particular, “aggrieved party.” the Court held: represent an In might or MCL 14.28 as read MCL 14.101 To the extent one appeal Attorney prosecute an from a allowing General appeal- losing party ruling below also without the

lower court being repre- Attorney ing, General himself and without the aggrieved party, would exceed the senting the statutes because, expressly pro- authority except Legislature’s where constitutionally to hear vided, authorized is not 350 479 MICH 336 Opinion of the Court did, however, recognize in Cleveland

We Cliffs persons bringing qui tam actions13 were found to have standing by the United States Supreme Court in Ver- mont Natural Agency Resources v United States ex rel Stevens 529 US 765, 774-777; 1858; 120 S Ct 146 L Ed 2d 836 We stated:

Accordingly, Agency] [ the Vermont Court held one brings who a relator suit has because he is the assignee may injury-in-fact of a claim and assert the assignor, normally suffered the govern- which is cases, ment. Id. at concluded, 773. In such the Court government’s injury-in-fact suffices to confer on bringing individual relators the suit. Id. at 774.

[T]he by private use of citizen suits or attorneys actions general application does not undermine the of traditional standing requirements. anything, If the use of such suits supports application requirements, of those as citizen by private attorneys suits and actions general always have grounded been private injury, in a whether suffered di rectly assignment or as a result of an another. [Cleveland omitted).] iffs, supra Cl at (emphasis 646-647 Cleveland sum, In holds that the Legislature may Cliffs not confer standing on a party that does not otherwise meet the injury-in-fact constitutional test for standing. But, under Vermont Agency, Legislature may create nonjusticiable Federation, supra controversies. Nat’l at Wildlife give 614-615. reading To these such a would contravene statutes operative presumption presume of this Court that we con- part Legislature. [Federated, stitutional intent on the of supra at 294-295.] “ tam” phrase “Qui is an abbreviation of a Latin that means ‘who ” pursues King’s this action on our Lord the behalf as well as his own.’ Agency Vermont Natural Stevens, Resources v United States ex rel 765, 769 (2000) (citation 1858; omitted). US n 120 S Ct 146 L Ed 2d 836 Schools Rohde v Ann Arbor Public Opinion of assigns whereby partially a statute tam actions qui private in fact claim to a citizen. injury government’s a MCL 129.61 creates Thus, the is whether question tam enough qui similar a action an action tam qui standing. arguing In constitutionally confer action to action, effectively qui create tam MCL 129.61 does Agency, point on out drawing Vermont plaintiffs, Claims Act at issue the federal False similarities between USC Agency, in Vermont include, first, statutes allow that both 129.61. These on behalf of the bring citizen civil action private Second, require private both statutes the government. opportunity pros- to give government to the the citizen and, finally, behalf, its own that both ecute the claim on with the civil go the citizen to forward statutes allow Yet, if fails do so. while the above government the to action False exist, crucial difference between the similarities the Act 129.60 the False Claims Claims Act and MCL is that in interest the outcome litigant private a a concrete gives by suit, standing, providing of the and thus constitutional 129.61, in no similar MCL bounty.14 provision a There is no but no other only bounty provision which has not a could establish such conceivably mechanism that even private interest. a typical qui

A second distinction between significant (like in and MCL Agency) tam action the one Vermont 129.61 not have a provision 129.61 is that MCL does the to and assume control allowing government intervene held that tamqui the suit. The Vermont a Agency of Act under federal Claims has relator the False partial assignee a properly he or is considered because she bounty concept plaintiff that is the recovers some of example, judgment False money For the federal if the lawsuit succeeds. percent govern Act a relator between 15 and of Claims awards 3730(d)(l)-(2). recovery. ment’s 31 USC 479 Mich 336 Opinion op the Court injury govern- assert fact suffered

ment. implies assignment This the statute’s of claims must rather full to partial be than be valid.15 Because there no sort assignment any is in MCL 129.61, aspect found in the False is key Claims Act also missing.

Moreover, state, again, unlike the federal govern- ment in a False involving Act, situation Claims is not the real suit party brought interest under require 129.61. Our statute does the plaintiff to follow found in procedural safeguards the False Claims Act as as other qui well modern tarn statutes ensure government that the remains fully apprised the litigation, the opportunity has to participate, and retains to make power key decisions over the objections.16 relator’s 15See, e.g., Gilles,Representational standing: US exrel Stevens (It (2001) litigation, 315,346 likely law 89 Cal L R future of assignment proprietary government, full claims under legislative regime prohibits intervening the executive from exercising any assigned claims, separation over control would violate powers.). (b) example, Act, (f), For the federal False Claims USC 3730 (1) protects following ways: the interest of the United States in the complaint relator must serve the and written disclosure of material government complaint evidence on the before the is served on the (2) defendant; complaint must relator file the in camera and the complaint government must remain under seal while the conducts investigation, by except and the relator must the not serve defendant (3) order; government court the must either intervene and take over the conduct of notify the action before the or defendant is served the court (4) action; conducting government

that the relator will be if the the proceeds action, primary responsibility with the prosecuting has for the (5) relator; lawsuit government and is not bound the acts of the the may (6) objection relator; dismiss or settle the action over the of the (7) government give dismissed; must written consent the case is before government protected liability litigation expenses from for (8) qui relator; government tarn percent receives at least 70 any recovery. v Ann Arbor Public Schools Rohde Opinion of the Court MCL 129.61 then, we conclude that For these reasons would qui give action that tam did establish their law- standing to pursue constitutional plaintiffs suit. MCL in that even if argue

Plaintiffs the alternative action, they tam never- qui 129.61 does not establish a Speaker under House standing have theless must (1993), Governor, Mich 506 NW2d 190 because no of a claim to there the who had more plaintiffs, have, case were found to standing than issue disagree. Speaker, In House standing. have We private nonprofit, corporate was whether the authority to challenge had to the Governor’s body of a created to a powers legislatively transfer the new, body. Court, The gubernatorially created while that re- acknowledging general principle “ [its] to that substan- quires litigant ‘demonstrare] in a detrimentally manner tial interest will be affected ” id. citizenry large,’ at at different from (citation omitted), actually to inexplicably neglected do, puzzlingly, the Court did apply principle. What groups to the civic met was conclude because 2.201(B)(4),17 rule MCR a court requirements to gives right or qualifying persons groups essence provides: This rule court expenditure prevent illegal funds or test An of state action relating expenditure constitutionality of a such an statute may brought: be (a) nonprofit organized corporation of a the name domestic civic, purposes; improvement or protective, for (b) Michigan at who own in the names of least 5 residents of county they property where assessed direct taxation reside. 600.2041(3). counterpart statutory court to this rule is 354 479 Mich 336 Opinion of Court Yet, injury, they sue without an could sue. as Lee and clear, Cleveland Cliffs made no court rule or statute can injury requirement eliminate the for constitutional standing. Thus, and Speaker dispositive House is not is did limited value because not address (MCR 2.201) correspond- whether the court rule or (MCL 600.2041) could ing constitutionally statute con- an standing fer to did not have a organization that and injury concrete interest the suit did not suffer an in fact. extent might having To the one read as so, silently done we disapprove being it as inconsis- tent with Lee Cleveland Cliffs.18

Plaintiffs admit their injury minute and generalized. Thus, it is not a and particular- concrete Indeed, injury any “remedy” ized in fact. they might obtain will not confer a financial on them.19 benefit Moreover, any potential obtain might benefit 18 partial response Justice Weaver’s dissent reiterates her standard by, yes, the recent decisions this Court were from decided Lee, majority, they always Cliffs, as have been since 1837. See Cleveland Comm, 286; Federated Ins Co v Oakland Co Rd 475 Mich 715 NW2d 846 (2006), Michigan Chiropractic Council Comm’r Finan Office of Services, 363; (2006), Michigan Ins cial & 716 NW2d 561 Inc, Citizens Water Nestlé Conservation v Waters North America for (2007), responses Mich NW2d and our in these cases. position standing, “prudential Justice Weaver’s on described her as standing,” litigant is that are there no immutable rules or standards must rather, sue; meet to have the court decides as it wishes on a party case-by-case standing. proper understanding basis if a The has of such approach standing regime power is as with no rules and unlimited judiciary. advance, and, course, one When no can know law no judge fashion, operate principled conscientious could then under it ain no description judicial standing adopted other suffices. rule we have has no short, essentially arbitrary approach such defect. In hers is an that no accusatory verbiage camouflage. amount of can merely accounting MCL 129.61 calls for an a return of funds entity. state V ANN ARBOR PUBLIC SCHOOLS ROHDE Concurring Opinion Kelly, J. any lawsuit be they if would prevailed by every- be that which would obtained different than circumstances, they do state. such one else in the Under standing.20 not have constitutional V CONCLUSION forth, we conclude have set For all the reasons we demand under 129.61 plaintiffs’ that although sufficient, this is unconstitutional statute was on standing taxpayers purports that it to confer extent standing not satisfied the who have Lee/Cleveland Cliffs requirements. part Appeals judgment that reject

We not did consti- that letters plaintiffs’ that determined 129.61, but, the basis that under MCL on tute a demand sue, we standing to affirm lack constitutional plaintiffs plaintiffs that held judgments the lower court We remand the with their lawsuit. proceed could not dismissing entry of an order case to the trial court plaintiffs’ lawsuit. court. and remanded to the trial

Affirmed JJ., concurred with Young, Markman, Corrigan, Taylor, C.J. alleg- a suit brought J. Plaintiffs (concurring).

Kelly, by entering state law into ing that defendants violated that define and bargaining agreements pro- collective 20 658, Ed, App 98 Mich See School Dist v State Bd also Waterford (1980), 662; private stating has no 296 that a citizen NW2d 328 wrong public right where that citizen or enforce to vindicate citizenry large, any different at has not hurt in manner from been 482; Detroit, (1953), stating 60 NW2d 319 Menendez special proper “private taxpayer, suffering grievance, is not a no plaintiff complaint filed to threatened official party to a bill of restrain misconduct.”

356 Mich 336 Concurring Opinionby Kelly, J. vide benefits for same-sex domestic partners of school district The circuit court did not employees. reach the issue suit, substantive but dismissed the holding that did not comply with the requirements sue, statute confers MCL 129.61. The Court of Appeals ruling affirmed that in a pub- Schools, lished opinion. Rohde v Ann Arbor Pub Mich App NW2d A majority of has this Court affirmed the Court of that, on Appeals result the basis although plaintiffs satis- statutory fied the requirements, they demand lack consti- tutional standing proceed with the I disagree suit. with the majority’s standing analysis but agree with the deci- affirm, sion to because I believe that did satisfy the demand requirements of MCL 129.61.

FACTS are Plaintiffs pay individuals who state and local (AAPS). taxes used to fund the Ann Arbor Public Schools are AAPS, Defendants the its education, board of the president board, of the and the of treasurer the board. Intervening defendant is the Ann Arbor Education Asso- (AAEA), ciation the exclusive collective bargaining repre- sentative of the teachers and other school personnel of the AAPS.

In 2000, plaintiffs directed letters to the following (1) public officials: the Governor of the of Michigan, state (2) legal counsel for the Executive Office of the state of (3) Michigan, the General Attorney of the of Michi- state (4) gan, Superintendent the of Public Instruction in the (5) state Michigan, of the Assistant Superintendent of (6) Instruction, Public County Prosecutor, Washtenaw (7) (8) nine members of education, the AAPS board of and of superintendent the AAPS. All the letters read as follows: Public Arbor Schools Rohde Ann Opinion by Concurring Kelly, J. you investigate halt request that We] write to [or

I “domestic public provide so-called use of funds public Arbor employees benefits to of Ann partnership” the School District’s exten- [or We] I believe that schools. authority employees exceeds its these benefits to its sion of marriage. We] I ask governing [or violates state law public your earliest you illegal this use of funds at that halt convenience. December were certified mail on

The letters sent no action 15, 2000, and were received soon after. When of funds for expenditure public to halt was taken partners of AAPS to the same-sex domestic benefits plaintiffs brought suit in the Washtenaw employees, plaintiffs’ under MCL 129.61. crux of Circuit Court recog- that defendants defined and improperly claim is of nized a new form domestic relations and treated as the in violation

relationship equivalent marriage Michigan marriage act, defense of MCL 555.1.1 issue, court did reach the The circuit substantive but dis- validity partner policy, the domestic ground did not have plaintiffs missed on that that to sue under MCL 129.61. The court held (1) had behalf of for the benefit not sued on contemplated by treasurer of the district as (2) 129.61, and language of MCL express mandatory with the comply requirements did not filing a demand suit. they MCL 129.61 make before affirmed. It with the disagreed The Court of Appeals the suit not filed on circuit court’s conclusion that was provides: MCL 551.1 Marriage inherently unique relationship a man between policy, special has a As a matter of this state and woman. protecting unique encouraging, supporting, and interest among stability relationship promote, goals, in order other marriage society children. A contracted and and its welfare state. individuals of the same sex invalid between 479 Mich Concurring Opinion by J. Kelly, behalf of or for the benefit of the AAPS treasurer as required by MCL However, 129.61. the Court did agree that had failed to satisfy the demand require- ments of MCL 129.61. The Court stated: 129.61, party

Pursuant to MCL must contact the (“the appropriate party officer, board, or commission duty suit”) may whose it be to maintain such amake demand brought by that a lawsuit be party for an accounting recovery misappropriated funds. Consult- ing dictionary plain ascribe term “demand” its ordinary meaning, provides we find the definition proper “to ask for with authority; right.” claim as a Moreover, phrase “maintain such suit” indicates that purpose requirement of the demand is to inform the appropriate party legal forthcoming. action is Plain- merely tiffs’ letters request are alleged that the misap- propriation stop; they are not a legal demand for action. Moreover, plaintiffs did not send a letter to the AAPS treasurer, likely responsible the officer maintaining for [Rohde, (citations such a lawsuit. App 265 Mich at 709-710 omitted).] Plaintiffs applied for leave to appeal the Supreme Court, and we heard oral argument on what constitutes an effective demand under MCL 129.61. 474 Mich 1120 (2006). We then granted leave to appeal, requesting that the parties additionally brief the issue whether plain- tiffs have standing under Nat’l Federation v Wildlife Co, Cleveland Iron 684 NW2d 800 Cliffs (2004). (2006). 477 Mich 924 STANDARDS OF REVIEW We review de novo trial court’s decision on a motion summary disposition. Ostroth v GP, Warren Regency, LLC, 36, 40; Mich 709 NW2d 589 This case involves a question of statutory interpretation, which is Schools Arbor Public v Ann Rohde by Opinion Concurring Kelly, J. Tombs, Mich People de novo. reviewed also (2005). 451; 697 NW2d SATISFY FAILED TO PLAINTIFFS 129.61 DEMAND REQUIREMENTS Of MCL THE the use is whether in this case underlying issue partners of to same-sex funds for benefits public before this But the issue illegal. is employees public investiga- a for an request appeal Court on whether for such benefits halting of the use of and a funds tion 129.61. under MCL effective demand constitutes and, it did decided The Court properly court had therefore, the circuit held agree I to defendants. summary disposition granted courts’ determination both lower with of MCL requirements the demand not satisfied have 129.61. provides:

MCL 129.61 corporation, resident Any person persons, firm or or district, paying taxes to such any township or school unit, actions at law or may institute suits or political of the treasurer for the benefit equity on behalf of or subdivision, accounting political for an such and/or unlawfully misappropriated moneys or recovery of funds or officer, such or commission of by any public board expended instituted a de- Before such suit is political subdivision. officer, or public board commis- on the mand shall be made by duty may such suit followed it be to maintain whose sion in relation thereto. take action neglect or refusal to plaintiff or by filed Security costs shall be expenses of the all costs and any suit or action and such instituting persons person or paid same shall be moneys recovery funds or unless of such until same proceedings. the result of such be obtained as the statute case arises because in this The confusion officer, board or on the “a demand ... requires Mich 336 Concurring Opinion by Kelly, J. duty may commission whose tobe maintain such suit followed neglect refusal to take action in relation thereto” clearly but does not define what action a plaintiff By must reading demand.2 the statute as a giving word, whole and every clause, effect to phrase, however, this resolved. See Grimes v Dep’t easily issue is Transportation, 72, 89; 715 NW2d 275

MCL 129.61 authorizes a taxpayer bring suit “for an accounting the recovery of funds or moneys mis and/or appropriated or unlawfully expended.” The statute re quires that a demand be made on the party “responsible for maintaining such suit.” The dictionary definition of “demand” is “to proper ask for with authority; claim as a right.” Random House Webster’s College Dictionary (2001). that, It follows order to make an effective demand, a plaintiff must ask the “party responsible for maintaining [the] suit” to undertake the action that the suit would accomplish, which is “an accounting[3] and/or recovery of funds or moneys misappropriated unlawfully expended.”

In case, plaintiffs sent letters to the Attorney General, others, among requesting investigation and a halting of the expenditure of future funds for benefits to same-sex partners of employees. The letters did not re- quest any action with respect past expenditures; referred solely to the halting of future expenditures. Even assuming that those who received the letters included the majority opinion The conveys finds that "a letter that a call to act is sufficient to constitute a demand” under MCL 129.61. Ante at 339. However, explains specific it never request what action must satisfy requirement. Evidently, order to the demand a call for an investigation halting sufficient, majority of funds is but the never explains language what it relies on to reach this conclusion. 3 “Accounting” report is defined as “a detailed of the financial state or person, company, transactions of a College etc.” Random House Webster’s Dictionary Arbor Public Schools Rohde v Ann Opinion Concurring Kelly, J. suit, requirement the demand to maintain party proper as anyone, never asked not satisfied. Plaintiffs still was accounting past expendi- for an requires, MCL 129.61 wrongfully spent. of funds recovery or the tures action specific request Requiring plaintiffs with the is consistent accomplish suit would “before phrase requirement. of a demand purpose Legislature indicates that suit is instituted” such notice and the given be proper party intended that rel Konstantelos Chicago to act. See ex opportunity first 344, 353-354; Co, Ill 2d Equip v Duncan Traffic (1983) of a demand (holding purpose that the NE2d the legis is to allow taxpayer lawsuits requirement to decide whether first body opportunity lative action). in this The letters involved the requested take be action that would specific did not request case Hence, the proper suit. taxpayer accomplished to review given opportunity the first party was whether to take this and decide on its own matter action.

THE ISSUE STANDING satis- A of this Court decides that majority of MCL 129.61. But the requirements fied the demand do not have affirms on the basis that majority I did not standing. Because would hold that standing issue requirements, the the satisfy demand however, to point I am pursued. compelled, need not be of this issue. majority’s analysis in the out the flaws In Lee v Macomb Co Bd Commissioners,4 the test articulated adopted Court expressly in Lujan States Supreme the United Defend- 4 (2001). 726; 629 NW2d 900 464 Mich 479 Mich 336 Concurring Opinion by Kelly, J. 555; 2130; ers 504 US 112 S Ct 119 L Ed 2d Wildlife, (1992).5 The test has three elements: First, plaintiff “injury must have suffered an in legally protected fact” —an invasion of a interest which is (a) Ob) particularized, concrete and “actual or immi- ” nent, ‘conjectural’ ‘hypothetical.’ Second, there injury must be a connection causal between and the complained injury “fairly... conduct of—the has to be challenged defendant, trace[able] to the action of the independent th[e] [of] not... result action of some Third, party “likely,” third not before court.” it must be opposed merely “speculative,” as injury will be [Lee, “redressed a favorable decision.” 464 Mich at quoting Lujan, 504 US 560-561.] at court, In federal from which test articulated Lee derived, general was rule taxpayers is that do not have standing object to a particular expenditure of DaimlerChrysler Cuno, funds. vCorp 332; 547 US 126 S 1854; Ct L164 Ed 2d 589 “Standing has been rejected in such cases because the alleged injury is not ‘concrete and particularized,’ but instead grievance taxpayer ‘suffers some indefinite inway common ” Id., with people generally.’ 547 US 126 S Ct at at_; 1862.

However, exceptions general to this rule exist. The United States Supreme Court has found that the rule taxpayers do not have standing to challenge particular expenditure of funds does not apply mu- Co, As I stated in Nat’l Federation v Cleveland Iron Wildlife Cliffs (2004), disagree majority’s 684 NW2d I with the holding expressly in the case. aWhere statute authorizes an action for showing particularized injury, violation of the act without of a apply Lujan Cliffs, Court should not standard. Cleveland J., concurring only). recognize Mich at 677 in result I with (Kelly, regret this Court’s decisions Lee and Cleveland now Cliffs binding precedent. constitute 363 v Arbor Rohde Ann Public Schools Opinion by Concurring Kelly, J. In v nicipal taxpayers. Massachusetts Mellon,6 Court held that an individual’s as a status federal is taxpayer standing insufficient confer on that challenge constitutionality individual to of federal Mellon, But, held, action. 262 US at the Court also 487. interest of a in taxpayer municipality “[t]he of a of its application moneys is direct and immediate remedy by injunction prevent their misuse is not Id. inappropriate.” at 486.

Mellon predates several decades the United States Supreme Court’s current three-part test constitu- Nevertheless, tional standing. easily Mellon reconciles with standing the current Mellon stands inquiry. for the proposition injury that the economic of increased taxes suffered a federal taxpayer enough to confer standing. contrast, By allegedly use of illegal local tax sufficiently dollars is a direct and injury immediate standing to confer on municipal taxpayers.7 And al- though the United States Supreme Court has not subsequently specifically standing addressed the issue with municipal connection it has reiter- taxpayer, ated this federal/municipal distinction on several occa- sions, Cuno, implicitly ratifying E.g., it.8 547 US at_; 1864-1865; Radish, 126 S Ct at ASARCO v 490 US 613; 2037; L (1989); 109 S Ct 104 Ed 2d 696 Coleman v Miller, 433, 445; 972; 307 US Ct L 59 S 83 Ed 2d 1385 (1939). 6 (1923). 447, 487; 262 US 43 S 67 L Ed Ct 1078 likely availability Plaintiffs also could show causation and the stopping

redress because favorable decision would result in the flow of disputed expenditures. standing For an extended discussion of federal decisions and the federal, state, municipal taxpayers different treatment afforded see Hickman, get anyway: Considering How we did here Cuno, question DaimlerChrysler Polity 4 Geo J L & Pub Opinion by Concurring Kelly, J. taxes,

Here, deciding who plaintiffs, pay local sue, majority do not have constitutional summarily rejects and its I progeny. Mellon believe that an are persuasive this is error. These decisions author- and deserve at least to be serious consider- ity given ation, if I explain why not followed. am at a loss to majority previously adopting advocated federal test, in yet this case the same justices sum- marily dismiss federal caselaw when the test. applying

Contrary majority’s claims, I recognize this Court is not bound Supreme United States However, in point Court’s decision Mellon. I out that in majority ignores precedent federal this case when precedent it has followed in federal lockstep other Lee, recent standing E.g., 740; cases. 464 Mich at 628-629; Cliffs, Cleveland 471 Mich at Michigan Chiro- practic Council v Comm’r Financial & Office of (2006) Services, 363, 377; Ins 475 Mich 716 NW2d 561 J.). I (opinion by can see no reason why YOUNG, would majority precedent follow federal in those cases but summarily dismiss it here. majority’s The simply following assertion it is

this Court’s decision Miller v Grandy raises other questions. To argument, embrace that the reader must accept majority blindly that the has embraced Miller as having correctly decided, been though even Miller con flicts federal precedent. time, with At the same Governor,10 reader must accept Speaker that House v on which plaintiffs rely, should be overruled because the precedent federal from which Lee and Cleveland Cliffs are derived is preferable to House The Speaker. majority should be consistent precedent. Or, its use of federal (1865). 13 Mich 506 NW2d 190 Rohde v Ann Arbor Public Schools Concurring Opinion Kelly, J. consistent, if not it should at least prin- articulate reason for cipled rejecting Mellon.11

CONCLUSION The majority affirms the judgment of the Court of because do not have standing to sue. I agree with the majority’s affirm, decision to I but do so separate grounds. on

In order to make an effective demand under MCL 129.61, a plaintiff must ask party responsible for maintaining the suit for an accounting or the recovery of unlawfully spent Because, funds. case, in this plaintiffs’ letters requested only investigation halting and the expenditure funds, of future satisfy failed to the demand requirements of MCL 129.61. Accordingly, 11 majority claims that the statement in Massachusetts Mellon distinguishing municipal taxpayers taxpayers from federal is dictum. explained above, Supreme As I the United States Court has stated on federal/municipal numerous occasions that Mellon established a dis respect taxpayer Cuno, standing. E.g., tinction with to at_; 547 US 1864-1865;ASARCO, 613; Coleman, 126 S Ct 490 US at 307 US at 445. The Court does not treat the distinction as dictum. Given that the Supreme recognizes United States holding, Court the distinction as a majority it would seem that the would not characterize it as dictum. Also, majority’s position subject By on quoting is inconsistent. proposition plaintiff Mellon particularized for the that a must suffer a injury, majority recognized, Cliffs, members of the in Cleveland 615, 616, standing at that the decision on the issue in Mellon holding. majority explain why they was a The members of the do not Also, changed have their view here. the fact that the United States Supreme recently recognized Court the distinction in Cuno illustrates important point: today an municipal federal courts are of a mind that taxpayers generally standing challenge allegedly illegal have to expenditure dollars, taxpayers of their tax whereas state and federal Considering do not. standing that this Court’s test Lee/Cleveland Cliffs law, was Supreme derived from federal the United States position standing persuasive applies on should be when this Court Michigan’s standing test. 479 MICH336 Cavanagh by Opinions JJ. and Weaver, court the circuit correctly affirmed

the Court to defendants. summary disposition granting decision only). in the result I concur CAVANAGH, (concurring J. I because do by majority the result reached only with Instead, I with Justice agree rationale. agree not with its statutory de- did not meet plaintiffs KELLYthat I Accordingly, 129.61. of MCL requirements mand dismissed properly Court of Appeals believe that to address there is no need case and plaintiffs’ standing. the issue of dissenting and (concurring part

WEAVER, J. of four majority of the part). holding I dissent from the YOUNG, (Chief CORRIGAN, TAYLORand Justices Justice MARKMAN) standing do not have plaintiffs and benefits offered domestic-partner challenge employees. Ann Arbor Public Schools to its defendant prin- on faux constitutional By basing its decision has further standing, majority of four ciples traditional doc- Michigan’s eroded manipulated holding in this case standing. majority’s The trine of of four’s misuse of the example majority is an of four over- majority power interpretation. law, to create new long-established turns law I hold that Constitution. would Michigan based our they when grants parties MCL 129.61 in the statute set forth requirements meet requirement demand that, plaintiffs because met the 129.61, challenge have of MCL Ann Public Schools. offered Arbor benefits Appeals judg- the Court of I would therefore reverse to meet the de- failed holding ment However, I of MCL 129.61. would requirement mand court to decide the this case to the trial not remand Rohde v Ann Arbor Public Schools Opinion by Weaver, J. by substantive issues raised plaintiffs. I in- would stead hold this case in abeyance for Nat’l at Pride Work, Governor, Inc v a case in which this Court granted leave to appeal determine public whether employers may offer benefits to same-sex partners public employees.1

I. FACTS Plaintiffs are individual taxpayers who filed suit under MCL 129.61 to compel defendant Ann Arbor (AAPS) Public Schools to halt expenditure public funds defendant used provide benefits for same-sex partners domestic of school district employees.2 Plain-t alleged iffs expenditure of public funds to provide for same-sex domestic-partnership benefits vio lates MCL 551.13 recognizing same-sex relationships as the equivalent of marriage. Work, Governor, Nat’l Pride at Inc v 478 Mich 862 provides, pertinent part: MCL 129.61 Any person persons, corporation, any or firm or resident township district, paying or unit, school political taxes to such may equity institute suits or actions at law or in on behalf of or for the benefit of political subdivision, the treasurer of such accounting recovery moneys misap- or and/or funds propriated unlawfully expended by officer, or any public hoard political commission of such subdivision. Before such suit is officer, instituted a public demand shall be made on the board or duty may commission whose be to maintain such suit followed neglect or refusal to take action in relation thereto.

3 MCL 551.1 states: Marriage inherently unique relationship between a man and policy, woman. As a matter of special this state has a interest encouraging, supporting, protecting unique relationship promote, among goals, in order stability other and welfare of society marriage and its children. A contracted between individuals of the same sex is invalid in this state. [July- 336 479 Mich

368 by Opinion Weaver, J. certified suit, by letters sent filing plaintiffs Before public the officials,4 informing public various mail to letters, In activity. the illegal allegedly of the officials stated: plaintiffs you investigate and halt request to that [or We]

I write so-called “domestic provide funds to public use of public employees of the Ann Arbor partnership” to benefits exten- District’s believe that the School [or We] schools. I authority exceeds its employees to its of these benefits sion governing marriage. [or We] I ask law violates the state your public of funds at earliest you illegal this use halt possible convenience. officials, plaintiffs action was taken

When no court dismissed the case lawsuit. The trial filed the instant ruling summary disposition, on motion bring to a suit requirements meet had failed to Ap- the Court of appeal, in MCL 129.61.5 On outlined court, holding trial affirmed the peals of MCL satisfy requirement the demand had failed to 129.61.6 Court, and in this appeal

Plaintiffs for leave to applied leave grant argument heard oral on whether we 4 Michigan, of to the Governor of the state Plaintiffs sent letters Michigan, legal Office of the state of counsel for the Executive Michigan, Superintendent of Attorney of General of the state Michigan, Superinten in the state of the Assistant Public Instruction Prosecutor, Instruction, County nine of Public Washtenaw dent Education, Superintendent and the AAPS Board of members the AAPS. 5 However, Thus, argued. issues of this case have not been the substantive 147; Work, Governor, App NW2d 139 v 732 Pride at Inc Nat’l 25, 1, (2007), § a recent art held that Const the Court Constitution, public employers Michigan from forbids amendment of the granted domestic-partnership offering benefits. We have since same-sex (2007). appeal 478 Mich 862 in Nat’l Pride at Work. See leave to 6 Schools, App Mich 698 NW2d 402 Arbor Pub Rohde Ann (2005). Rohde v Ann Arbor Public Schools Opinion J. Weaver, appeal respect with to the issue what constitutes an effective demand under MCL 129.61. Mich See 474 granted We then Mich appeal. leave (2006). However, rather asking parties than to brief only courts, the issues decided in lower also asked the to brief issue parties whether 129.61 grant standing could light majority of four’s holding Nat’l Federation v Cleveland Wildlife Cliffs Iron Co.7 Id.

II. THE MAJORITY OF FOUR’S ON IN ASSAULT STANDING MICHIGAN

The of majority case, four taken this involving has the important controversial issue whether employers offer can same-sex benefits public employ- to ees, and it along turned into a crucial step path its toward the decimation of the traditional legal doctrine of standing Michigan. in Beginning with Lee v Comm’rs,8 Macomb Co Bd a of involving

case 35.21, the of interpretation the majority overruled Michigan precedent establishing prudential standing as the of legal traditional doctrine standing Michigan.9 in In place of Michigan’s doctrine 7 Co, Nat’l Federation v Cleveland Iron 471 Mich 608; Wildlife Cliffs (2004). 684 NW2d 800 8 Comm’rs, Lee v Macomb Co Bd 464 Mich 629 NW2d 900 of 726; (2001). 9 Lee, Michigan standing Before the based were on requirements House generally, than rather concerns. prudential, constitutional, See, Speaker Bd, v State Administrative Mich 441 559 n 495 NW2d 20; 547, Fighters Riley’s (1993), Fire Detroit 539 and Justice concurrence Detroit, (1995). Ass’n v 537 NW2d The 629, 643; standing long-established test is a prudential test that was used by litigants a Court to standard to order to for meet have provide standing to sue. The “a test demonstration that prudential requires the substantial be affected interest will in a detrimentally supra Speaker, House large.” manner from different the at at citizenry grounded Michigan 554. The test was never in the Consti- prudential Mich 336 by Opinion Weaver, J. Michi- for majority created standing, prudential based on the doctrine of a constitutional

gan v standing, Lujan for as stated federal courts’ test Defenders Wildlife.10 four, through majority Wildlife,

In Nat’l dicta, Environmental Michigan lengthy attacked (MEPA) unconstitutional, stating Act as Protection power much granted MEPA too any person. through provision granting standing its standing. Thus, tution, Michigan on because Constitution silent could, history Michigan, throughout altered be such as MCL 129.61. statutes 555; Wildlife, Lujan 119 L 504 US 112 S Ct Ed Defenders of Lujan, majority, quoting The stated: 2d 351 Lee “First, ‘injury plaintiff must have suffered an in fact’—an (a) legally protected interest which is concrete invasion of (b) imminent, “conjectural” particularized, and or ‘actual ’ Second, “hypothetical.” there must be a causal connection be- injury complained injury has to conduct of—the tween and the defendant, challenged ‘fairly... trace[able] to the action of the be independent th[e] [of] the action of some third and not... result Third, ‘likely,’ opposed party must as not before the court.’ be merely injury ‘speculative,’ will be ‘redressed ” [Lee, 739, quoting Lujan, supra supra decision.’ at at favorable 560-561.] majority adopted Lujan constitutionally Lee test as based test 6, 1, standing, theory § under a which vests the Const art “judicial granted judicial power,” Michigan courts with the branch state judicial power only limited bestowed federal courts under the same on the III of the United States Constitution. article 11 majority granting judiciary The MEPA was the the concluded that laws, power power” expanding judiciary’s “executive enforce the feigned “judicial power.” majority beyond the While the constitutional restraint, engaging judicial judicial in truth activism. The was majority analysis self-adopted based its on its definition term 6, “judicial power,” § in Const art 1. The term contained “judicial power,” major Michigan so the Constitution does not define definition; majority ity specifically to federal for a the turned law majority III of But the relied on article the United States Constitution. Michigan Chiropractic four’s statement in Council v Comm’r the PUBLIC SCHOOLS V ANN ARBOR ROHDE Opinion by Weaver, J. in Nat’l Meanwhile, held that the majority the met the federal they because standing had Wildlife by major the standing adopted doctrine constitutional by discourse the Thus, lengthy despite the ity in Lee. Legisla the the issue whether subject, the majority on citizen, under the test any grant ture could Lee, remained unresolved. by adopted concurrence, by I stated that Nat’l my In Wildlife of citizen- subject on the extensive dicta writing such majority case: “The highly publicized suit not drawn case that has for a future can wait MEPA the directly and declare to openly attention unconstitutional.”12 standing provision citizen-suit issue of same-sex substantive underlying Although up controversy and case has stirred in the instant benefits by decided already has been the issue publicity, 363, 369; Services, 716 NW2d 561 & Ins Financial Office key from (2006), variation States Constitution’s reveals the United tripartite majority “Our Michigan stated: Constitution. constitutionally in both our state government established system Const, III, upon § the' 1 confers US art and federal constitutions. III, judicial Const, § 2 ‘judicial power’; art limits only US courts ” problem with the Id. The power ‘Montroversies.’ ‘Mases’ Michigan and the majority’s comparison Constitution between the Const, III, § only 2 sets out a US art is that federal constitution in the Michi- case-or-controversy to that contained limitation. Similar Constitution, judicial power in US general contained idea of gan by specifically limited US Const, III, very § broad. It is then art 1 is correspond- Const, III, Michigan contains no § Constitution 2. The art general misinterprets Thus, majority what the ing limitation. entails, power its own judicial power instead defines federal subsequent the federal constitution. section of out in a limitations set judicial Michigan’s worse, majority defines then To matters make limitations, Michigan though Constitu- even power the federal self-created, majority’s The result is a similar limitation. tion lacks standing in Michi- case-or-controversy governing standard inferred gan. (Weaver, J., concurring in the result Wildlife,supra at 653-654 Nat’l only). by Opinion Weaver, J. in Work, Nat’l Pride at appeal that we will Thus, review in the coming term. for all practical pur- poses, the majority’s procedural in opinion this case changes nothing for either in side the debate over same- sex benefits. By deciding that the Legislature cannot grant case, in however, the majority has managed to in slip major blow to Michigan’s traditional of standing. The majority doctrine can now use this holding declare that statutes such as MEPA unconsti- tutionally grant standing citizens, and to avoid the inevitable firestorm that would by follow directly holding so in a case which opinion actually significance has to the parties involved. See Michigan Citizens Water Conservation v Nestlé Waters North Inc, America Mich (2007), 737 NW2d 447 in which the majority indeed applies the holding in this case to declare that MEPA unconstitutionally grants standing to citizens.

Today, the majority only declares that the Legis- lature constitutionally cannot grant standing to citi- zens, it by does so extensively quoting its dicta from Nat’l As the majority in Nat’l admit- Wildlife. Wildlife ted, its discussion of the Legislature’s ability grant standing was “simply dicta.”13 The majority’s manipu- lation of dicta to quotable create references designed to affect holdings future is truly indicative of the majori- ty’s assault on Michigan’s traditional, prudential doc- trine of standing. Starting Lee, with the majority set the stage to standing doctrine, create its slipping pieces of dicta along way in Nat’l Wildlife, all so that quote could itself future opinions.

The majority has manipulated its own opinions to create its own doctrine law for standing in Michi- gan by overruling precedent replacing that Wildlife, supra Nat’l at 649 n 33. Public Schools v Ann Arbor Rohde Opinion Weaver, J. being as it characterizes a doctrine with precedent making By Constitution. Michigan on the based has concern, majority standing a constitutional the hands of standing out of legal the area of taken it exclu- placed people and the Legislature the standing mercy. To make majority’s this sively at Constitu- Michigan our when concern constitutional the of regarding which silent completely is tion grant power has branches government’s objectionable the most of judicial activism represents to all citizens once available A that was power sort. lawsuit, only can now bring a power Michigan, The ma- amendment. by constitutional reclaimed be “judicial definition of created its own has jority case-or-controversy limitations based on power,” by the enumerated power specifically the judicial courts,14 for the federal States Constitution United quality of inherent type it as some adopted Michigan Constitution. term “case-or- interjects majority

The in order to Michigan Constitution controversy” into the in-By MCL 129.61 is unconstitutional. conclude that into the controversy” the term “case terjecting Constitution, plain majority obscures Michigan in Michi- document important of the most language a statute Further, majority holds legal system. gan’s long recog- has when, as this Court unconstitutional Legislature nized, presume this Court must majority The the constitution.15 not violate would Michigan Constitu- it infers from term adopting defeat the as a means to that inference using tion and in all Michi- constitutionality inherent presumption legislation. gan

14 opinion. See n 11 of this 15 511, McQuillan, People Mich NW2d v 479 MICH 336 Opinion by Weaver, J. out,

As the majority points 353-354, ante at before Lee, in decision this Court did not address standing as a constitutionally based test.16 majority correctly in Governor, states that House Speaker this Court concluded “that because the civic groups met the re quirements of MCR 2.201(B)(4),[17]a court rule essence gives qualifying persons or groups right to sue without an injury, they could sue.” Ante at 353-354. While the majority may find it “inexplicabl[e]” or “puzzling[ ]” that Court House Speaker would my As I wrote concurrence in Lee: Speaker In House we stated that “this Court is not bound to regarding follow federal standing,” pointing cases out that “[o]ne notable distinction between federal and state analysis power advisory is the opinions. this Court to issue 1963, 3, § Const art 8. Under Article III of the federal consti tution, may opinions federal only courts issue where there is an controversy.” actual Speaker, [House case or supra at] including Kennedy, n 20. writing Justice for the Court in Radish, 605, 617;

ASARCO Inc v 490 US 109 S Ct 104 L (1989), acknowledged: Ed 2d 696 recognized “Wehave often that the constraints of Article III do apply courts, accordingly not to state the state courts are not by bound controversy the limitations of a case or or other federal justiciability.. [Lee, rules of supra . .” at 2.] 743 n 2.201(B)(4) provides: MCR prevent illegal An action to expenditure of state funds or to test constitutionality relating expenditure a statute to such an may brought: be (a) in the nonprofit name of a corpo- domestic organized civic, ration protective, for improvement or purposes; or

(b) in the names of at least 5 residents of Michigan property who own assessed for direct taxa- by county tion they where reside. statutory 600.2041(3). counterpart

The to this court rule is MCL Schools Arbor Public v Ann Rohde Opinion Weaver, J. standing,18 it is a citizens give analysis an use such to solve and thought much require that does puzzle 2.201(B)(4) in House MCR applied This Court explain. time, Michigan followed because, at Speaker constitutionally test, rather than standing prudential of four. majority created standing test based time, could, be used at that and statutes Court rules did not suffer a standing even when grant representatives.19 or their to themselves injury concrete prudential the traditional in Lee overruled majority The creatively adopted instead doctrine and standing test, de- standing constitutional the federal Michigan Michigan Constitution change in the no relevant spite codified law. Michigan applicable by the an 1865 case cited fact, Grandy,20 in Miller v In Michigan taxpayers for the majority proposition sue, applied this Court have do not Lee, Until standing test. prudential traditional to the resorting standing without analyzed Con- Constitution, Michigan though even Michigan reference to the courts’ included always has stitution as support now cites majority that the “judicial power” implied constitutional conclusion for its creative only judicial to the standing belongs to determine power branch.21 pre-Lee difference between most important that, standing is post-Lee, doctrine

post-Lee stand- of what Regardless concern. a constitutional now 18 Ante at 353. standing to sue Speaker, plaintiffs in would have Under House this case part III of this they complied 129.61. As discussed with MCL

because have 129.61 on bring at law under MCL a suit or action opinion, can recovery misappropriated funds. political for the of a subdivision behalf Grandy, Miller 13 Mich 540 1908, 1850, 6, 1; 6, 1; § art See, § art Const e.g., art Const Const 7, §1. 479 Mich 336 Opinion by J. Weaver,

ing test decided, was used before Lee was standing was never grounded in the Michigan Constitution. The Legislature could always confer standing on citizens without concern for violating separation of powers doctrine. stated,

For the reasons I agree cannot with the majority that MCL 129.61 unconstitutionally grants citizens, standing to I because cannot agree that stand- ing rooted in the Michigan Constitution. The majority has gone too far in creating its own standing test as a constitutional test. It has taken away a valuable power from Legislature and the people Michigan. I that, believe even when a plaintiff does not meet the three-part test adopted by the majority Lee, Legislature is not barred by the Michigan Constitution from granting standing to that plaintiff.

III. PLAINTIFFS SATISFIED MCL 129.61 While I dissent from the majority’s holding that plaintiffs lack constitutional standing, I agree with and concur in the majority’s analysis of the plaintiffs’ com- pliance with the requirements outlined in 129.61, MCL in part contained III of the majority opinion, in which the majority holds that plaintiffs satisfied the demand requirement of MCL 129.61.

IV. CONCLUSION I would hold that MCL grants 129.61 standing to parties when they meet requirements set forth in that, statute and because met the demand requirement of 129.61, plaintiffs have standing to challenge the benefits offered Ann defendant Arbor Public Schools. Schools Arbor Public v Ann Rohde Opinion by J. Weaver, judgment Court of

I would reverse requirement the demand to meet failed case to the trial remand this would not 129.61.1 by plain- raised issues the substantive to decide court abeyance for Nat’l this case instead hold I would tiffs. Court will determine Work, a case which Pride at same- benefits to may offer employers public whether employees. public partners sex victory in this case majority holding by a. over the contentious debate in the for neither side employ- benefits for of same-sex constitutionality Michigan, people all the Rather, is a defeat for ees. unre- majority’s contend with now have to who grant cannot Legislature decision that strained this state. the citizens of standing to legal

Case Details

Case Name: Rohde v. Ann Arbor Public Schools

Court Name: Michigan Supreme Court

Date Published: Jul 25, 2007

Citation: 737 N.W.2d 158

Docket Number: Docket 128768

Court Abbreviation: Mich.