Straus v. Governor

230 STRAUSv GOVERNOR January 6, 1998, Lansing. Docket No. 204457. Submitted at Decided June 9, 1998, appeal granted, at 9:00 A.M. to Leave 458 Mich 865. Kathleen N. Straus and three other members of the State Board of brought Ingham against Education an action in the Circuit Court Governor, seeking declaratory injunctive against and relief implementation of Executive Order Nos. 1996-11and 1996-12.The Superintendent executive orders make the of Public Instruction the by transferring head of the of Education from the statutory board to the most the board’s adminis- powers, duties, functions, responsibilities. trative court, and Carolyn Stell, X, granted summary disposition plaintiffs for the and

permanently enjoined implementation of the executive orders. 8, 3, The court concluded that the orders violate Const leadership general which supervision vests the board with and over public education, authority and exceed the Governor’s under Const reorganize govern- to the executive branch of state appealed. ment. The Governor Appeals The Court of held: infringe The executive orders do not the board’s constitutional powers prerogatives scope or and are within the of the Governor’s authority reorganize to the executive branch of state government. plaintiffs’ 1. The diminution in power collective influence and upon implementation that will result of the executive orders plaintiffs standing confers bring on the challenges to an action that validity of the executive orders. power reorganize 2. The Governor’s constitutional to the execu- government nearly plenary tive branch of state and includes the authority delegate, assign, existing power, responsi- or transfer bility, authority within, among, or depart- or across the executive board, although ments. The created and vested the constitution specific functions, part with five is nevertheless of the executive subject power branch reorganization. and to the Governor’s orders, transferring only 3. statutory powers The executive duties, leave unaffected the board’s constitutional Straus v Governor ability leaderstdp super- duties, including provide its vision over education. granted Reversed; judgment cause of action to Governor. of no part part, P.J., concurring dissenting in stated Ftkgerald, part government, executive branch of state that the board is infringe under Const that the executive orders the board’s 1963, 8, 3, § art and that the executive orders are not within 5, authority 1963, scope § under Const art 2 to of the Governor’s constitutionally reorganize the executive branch. The board is leadership empowered, part providing and of its function of supervision public education, Department to head the of Edu- over orders, by making cation. The executive department, infringe powers. the board’s constitutional head of the authority reorganize legisla- The Governor has constitutional tively boards, commissions, departments, created executive constitutionally departments, (such but not created boards as the Education), State Board of and commissions. The executive orders scope authority are not within the of the Governor’s over executive reorganization. Reorganization. — — 1. Constitutional Law Governor Executive power reorganize The Governor’s under the state constitution to government nearly plenary; executive branch of state the Gover- may delegate, assign, existing power, responsibility, nor or transfer authority within, among, departments or or across the executive (Const 1963, 5, 2).§ art Challenges. — — — 2. Constitutional Law Acts Executive Orders Facial party challenges being A who an act or executive order as unconstitu- tional on its face must establish that no set of circumstances exists valid; under which the act or executive order would be the fact might operate unconstitutionally that the act or executive order under some set of circumstances is insufficient. Reorganization — — 3. Constitutional Law Executive State Board of Edu- — Superintendent cation of Public Instruction. Superintendent Executive orders which the Governor made the Public Instruction the head of the of Education in place by transferring super- of the State Board of Education statutory duties, functions, intendent the board’s administrative responsibilities infringe constitutionally do not the board’s vested authority generally supervise to lead and all education (Const 1963, 1996-11, § art Executive Order Nos. 1996-12). 230 Opinion of the Court Cousens, Mark H. Sachs, Waldman, O’Hare, Helveston, Bogas McIntosh, & (by Mary P.C. Ellen Gurewitz), White, Przybylowicz, Schneider & Baird, PC. Arthur R. (by Przybylowicz), for the plaintiffs.

Frank J. Kelley, Attorney General, L. Thomas Casey, General, Solicitor Wheeker, Thomas R. Attorney Assistant General, for the defendant. P.J., Before: and O’Connell and Whit- Fitzgerald, beck, JJ. J. appeal In this of right, plaintiffs,

O’Connell, elected members of the State Board of Education (hereafter the board), challenge, as being excess of authority vested in the Governor and as being derogation of the board’s inherent prerogatives under Const 1963, art 8, 3, the actions of the Governor in promulgating Order Executive Nos. 1996-11 and 1996- 12. These orders transfer various of the board Superintendent of Public Instruction. The Ing- ham Circuit Court agreed plaintiffs’ contentions, and, on summary cross-motions for disposition, MCR 2.116(C)(8) and (10), declaratory issued a judgment permanent injunction against implementation of these orders. We reverse.

1. FACTS AND BACKGROUND INFORMATION The facts in this matter are dispute. in On December 19, 1996, the Governor issued Executive Order 1996-11, No. which transferred “all of the statutory administrative powers, duties, functions and responsibilities” of the board to the v Governor Opinion of the Court “Type effect, a II In transfer.”1 Executive Order No. superintendent, 1996-11 made the rather than the board, the administrative head of the Education. This order was to become effective March 10, 1997. 19, 1996,

Also on December the Governor issued Executive Order No. 1996-12. Section of this order statutory pow- “all transferred of the administrative responsibilities” ers, duties, functions, and of the approximately board, as set forth one hundred dif- Michigan Compiled ferent sections of the Laws, to the superintendent by “Type II transfer.” Section 2 statutory making powers, “[a]ll transferred rule responsibilities” duties, functions, and board, approximately thirty-nine as set forth an additional Michigan Compiled sections of the Laws, to the superintendent by “Type II transfer.” Section 3 statutory policy making powers, stated that “all the responsibilities” duties, functions, and board, approximately thirty-six as set forth in different sec- Michigan Compiled tions of the Laws, “shall remain with the State Board of Education.” Executive Order July No. 1996-12was to become effective 1, 1997. Given the nature of the case us, before we must judicial competence take note of the limits of in such political matters. We cannot serve as overseers of the legislative weighing executive or branches, the costs competing political and benefits of ideas or the wis- legislative taking dom of the executive or branches in may only certain actions, but determine whether provision some constitutional has been violated an 16.103(b); 3.29(3)(b), “type Pursuant to MCL MSA a n transfer” allows transferring existing principal department. of an board to a 230

Opinion of the Court (or omission) legislative act of the executive or long recognized, branch. As has been when court challenge confronts a constitutional it must determine controversy “stripped digressive imper- all tinently heated veneer lest the Court enter —unneces- sarily thorny this time—another and trackless bram- politics.” Taylor Twp, blebush of v Dearborn (1963) joined 47, 50, 51-52; 120 NW2d 737 J., (Black, J.). Indeed, it is clear that issues of Kavanagh, underlying justici- motive the contested action are not Tenney able. See also v Brandhove, 367, 376; 341 US (1951) (noting 71 S L Ct 95 Ed 1019 that it is “not government consonant with our scheme of for a court inquire legislatures”). into the motives of H. STANDING plaintiffs’ As a threshold matter, we address stand- ing jurisdiction to maintain this suit and our to issue injunctive against repre- relief Plaintiffs the Governor. precisely membership sent one-half the of the State Voting plaintiffs Board of Education. bloc, as a have ability any to either determine the result matter coming by convincing before board, one other join impasse member to them, or to create an if all opposite other members of the board seek an out- come. However, under Executive Order Nos. 1996-11 plaintiffs’ ability and 1996-12, to forestall action statutorily delegated the board in the exercise superintendent may is limited because the act unilaterally (unless majority of the board directs otherwise). arguable plaintiffs’ This diminution in col- power lective influence and official suffices, in our standing pursue view, to confer on them to this chal- lenge. Speaker House v State Bd, Administrative 227 v Governor Opinion of the Court 547, 556; NW2d 539 see also Raines (1993); Mich 495 L Ed Byrd,_US_; 2312, 2319; v 117 S Ct 2d 849 (1997). a at all that,

We would also note because court required question sponte juris- times is to sua its own subject (whether person, diction over matter of action, may an or on the relief it afford), the limits Fox v Univ Bd Michigan Regents, 375 242; (1965), 134 NW2d 146 we have some doubt with respect propriety injunctive relief against the separation powers princi- Governor. It is clear that ples, Const 2, preclude mandatory injunctive relief, mandamus, against the Governor. People ex rel Sutherland v Governor, 29 Mich Am Rep (1874). Whether similar reasoning also puts prohibitory injunctive beyond compe- relief judiciary appears tence of the be an open question that need not be resolved this case. We do note Supreme recently recognized Court has that declaratory normally relief will suffice to induce the legislative branches, principal and executive mem- bers of which fealty have taken oaths of to the consti- tution identical judiciary, taken 11, 1, to conform their actions to constitu- tional requirements or confine them within constitu- tional limits. Michigan, 175, 205; Durant v 456 Mich Only declaratory 566 NW2d 272 (1997). when relief has failed should the courts even begin to consider additional forms of relief in these situations. at Id. 206. The need for utmost delicacy part on the judiciary, respect unique for the office of Gover- nor, similarly People was ex recognized rel Johnson Coffey, 591, 602; (1927): 237 Mich 213 NW 460

Opinion of the Court him, governor an holds exalted office. To and to him alone, sovereign people power has committed the and the right proceeding to determine the facts in the before us. His disputed question finding decision of of fact is final. His fact, support it, if it has evidence to conclusive on this unbecoming impugn motives, court. It would be in us to his unseemly and unlawful to invade his discretion. ffl. REVIEW STANDARD OF This case is before us on cross-motions for sum- mary disposition, MCR 2.116(C)(8) and We (10). review a trial court’s ruling summary on motion for Nahra, novo. G & A Inc v disposition de 204 Mich App 329, 330; 514 (1994). Indeed, summary NW2d 255 disposition under either MCR 2.116(C)(8) (10) or will always present an issue of law for our determination. Nahra, swpra at 330.

IV. ANALYSIS When reviewing provisions, constitutional objective of such review is to effectuate the intent of people who adopted the constitution. Livingston v Dep’t Management Co & Budget, 430 Mich 641-642; 425 NW2d (1988). 65 The lodestar principle is that of “common understanding,” the sense of the words used that would have been most obvious to those who voted to adopt the constitution.2 House 2 portions People” Both sides have cited of the “Address to the and the Convention, may properly record of the Constitutional both of which be interpreting provisions. Bingo considered in Coalition for Charity Canvassers, App 405, 410; Politics v Bd State 215 Mich —Not (1996). However, precise 546 NW2d 637 nowhere was this issue consid- discussed, ambiguous ered or and what remains is too and short-lived to us, particu- confronting serve as a reliable basis resolution of the issue larly phraseology is, view, straight- when the constitutional at issue our meaning application forward in on the record before us. See Doe v Dep’t Services, 650, 672-674; (1992). Social 439 Mich 487 NW2d 166 v Governor Court Speaker Governor, 560, 577; v 443 Mich 506 NW2d Where, here, there is a claim that two dif- (1993). provisions collide, ferent of the constitution we must seek a construction that harmonizes them both. This because, adopted is so having both been simultane- ously, trump neither can the other. logically Kunzig Liquor Comm, 474, 480-481; Control NW2d 247 (1950). power 5, 2, Governor’s under Const noted, nearly plenary.3

as has been In the absence sixty of a legislative days during veto within a regular session a full (or regular session of shorter duration), the Governor, executive order submitted to the Legislature, may make changes organization the executive branch or in the assignment of func among tions its units that the Governor considers necessary for efficient power administration. This provides: offices, agencies All executive and administrative and instrumen- government

talities of the executive branch of state and their respective functions, powers duties, except for the office of governor governor governing and lieutenant and the bodies of insti- higher provided constitution, tutions of education for in this shall among principal be allocated law and within not more than 20 departments. They grouped practicable according shall be as far as mqjor purposes. to Subsequent allocation, may governor to the initial make changes organization in the of the executive branch or in the assignment among of functions its units which he considers neces- sary require changes efficient administration. Where these law, they force of shall be set forth in executive orders and submit- legislature. legislature ted to the Thereafter the shall have 60 calen- days regular session, regular dar of a a if or full session of shorter duration, disapprove disapproved to each executive order. Unless by majority in both houses a resolution in concurred house, serving in members elected to and each each order shall designated by become effective at a date thereafter to be governor. App 230 Mich Opinion of the Court authority includes the delegate, assign, to or transfer existing power, responsibility, authority or within, twenty or across not among, principal more than departments. power only by The Governor’s is limited provisions constitutional that would inhibit the Legis- Speaker lature itself. Governor, supra House v at 578- Remand, Morris v Governor (On Remand), After App 604, 608; 214 Mich 543 NW2d 363 (1995). Because the Governor’s action has the status of legislation, enacted it is entitled to the presump- same constitutionality tion of that an equivalent statute enjoy. Therefore, judiciary would should construe the executive orders as constitutional unless uncon- stitutionality clearly appears. Mahaffey Attorney General, 325, 344; 564 NW2d 104 (1997) (statutes should be construed as constitutional unless unconstitutionality clearly apparent).

The board is a authority, empowered “[leadership general supervision over all public education, including adult education instructional programs state institutions, except of higher institutions education granting baccalau reate degrees.” Const art 8, 3.4 The board serves “as planning body and coordinating provides, part: Leadership general supervision public education, over all including programs adult education and instructional in state insti- tutions, except higher granting as to institutions of education bac- degrees, calaureate is vested in a state board of education. It shall serve, general planning coordinating body public as the for all education, including higher education, legisla- and shall advise the requirements ture as to the financial in connection therewith. appoint The state board of education shall instruction whose term of office shall be determined right board. He shall be the chairman of the board without

vote, responsible policies. and shall be for the execution its He v Governor

Opinion of the Court all public education, for including higher education,” and as advisor to “the legislature as to the financial requirements in connection 1963, therewith.” Const 8, 3, cl 1. The board eight consists of members § by party nominated conventions and elected at large years prescribed by for terms of eight Id., law. § cl 3. The is appointed by board, chaiiperson, serves as its but without voting rights, and is imbued the constitution responsibility policies. Id., execution of board cl 2. The Gov ernor serves as an ex-officio member of board, without the right Id., to vote. cl 3. As all are such agencies, part administrative the board is of the exec utive branch government.5 Judges Judi 74th cial v Bay Co, Dist 385 Mich 710, 727; 190 NW2d 219 (1971).

Nonetheless, plaintiffs contend that the board is part of or within the executive In branch. this regard, we note that provides 2§ powers government are divided into three branches: legislative, executive, judicial. In Feder- ated Michigan Publications v State Univ Bd Trust- ees, App 221 Mich 103, 113; 561 NW2d 433 we (1997), dealt with a somewhat similar argument, to the effect Open Meetings Act, MCL 15.261 seq.) el MSA 4.1800(11) seq., apply et does not universi- principal department

shall be the executive officer of a state provided by shall education which have and duties law. appointed directly Because members of the board are neither nor Legislature judiciary, part overseen or the the board must be government. executive branch. There is no fourth branch of Walker v Wol Fabricating Mfg, Inc, (1986); verine & 425 Mich 391 NW2d 296 General, 673, 682; Civil Service Comm v Auditor 5 NW2d 536 (1942). Opinion of the Court “coequal to be branches of were asserted ties that unequivocally: responded We government.” disagree. PA In In re 1976 We [400 powers gov- of (1977)], the Court noted that the NW2d 635 among government three branches of ernment were divided pursuant 1963, 3, § art 2. It further noted that the to Const separation powers set forth in the constitution was of preserve independence “designed three to the of the government.” Although Id. at 662. various cases branches govern- universities are branches of have stated that coequal Legislature, the the constitution does not ment any provision that elevates them to a fourth branch contain government. Fabricating Mfg See Walker v Wolverine Co, Inc, 586, 607; (1986). 391 NW2d 286 Because autonomous state universities have not achieved that status inapplicable constitution, In re 1976 PA 267 is to under Publications, supra this case. at 113-114 [Federated (emphasis original).] apply The is reasoning

We the same here. board not a fourth branch of To so hold would be to government. directly plain meaning 1963, contravene Const 3, Further, part legis art 2. the board is not § judicial Rather, part lative or the branch. board branch, of and within the executive as a albeit consti tutionally entity specifically created with five deline ated, constitutionally inviolable, and therefore funct regard, ions.6 In this the constitutional location of the board’s functions within the executive branch is simi- (1) “[(leadership general supervi- These functions to exercise are public education, including sion over all adult education and instructional programs institutions, except higher in state as to institutions of educa- degrees,” granting (2) general planning tion baccalaureate to serve “as the coordinating body public education, including higher all educa- tion, (3) legislature requirements before” as to the final to “advise therewith,” (4) appoint superintendent, (5) connection to deter- 1963, 8, superintendent. § mine the term of office of the Const art 3. Governor

Opinion of the Court Transportation Commission, lar to that of the State 5, 28, Const 1963, Rights § under art Civil Com 1963, 29, and mission, under Const art the Civil § Commission, under Const art 5.7§ Service specific requirements contains constitution relating Const Education. 8, 3, 2 specifies cl “shall principal depart- be executive officer of state which ment education shall have provided law.” duties This must be read as some plenary power limitation on the Governor’s generally 2, subject joint under veto resolution, legislative government to reorganize state twenty departments. into not more than principal It may concluded, be logically given the fact specifically of Education is mentioned in constitution, department the that the is one of the twenty departments.” “principal 7 We note that the Civil Service Commission’s are functions not set out dealing in the article of Const with 1963 the executive branch but in the dealing public employment. However, article officers and in Reed v Comm, 137, 152; (1942), Michigan Service Mich Civil Supreme Court, 3 NW2d 41 the construing the 1941 amendment Const 1908 that of cre- the Civil ated Service Commission as a constitutional rather than a statu- entity, tory “rights arbitrary . referred to . . affected or unreasona- agency.” (Emphasis supplied.) logical action of an ble administrative The administrative, compared repository judicial, legislative or func- is in the But tions executive branch. see the concurrence of Chandler, joined by C.J., J: Bdshnell, Unquestionably the service is a civil commission

body possessing plenary power. subject In its acts it is not to con- regulation by executive, legislative judicial trol or or either [sic] government. [Reed, supra, branch of our State at 163.] Dep’t 375, 385-386, Service, also Civil See Viculin v n (1971) (boards throughout NW2d 449 and commissions created consti- bodies); Judges Dist, supra are tution administrative Judicial 74th (administrative part agencies are executive branch of at of the government.). 230 Court parties suggest the executive do engender the constitu- a violation of orders at issue twenty departments. principal Sim- limitation to tional ilarly, parties suggest Governor do not that the expira- implement sought such orders before sixty constitutionally prescribed regular tion of the days regular legislative or a full session of session Finally, parties suggest do not duration. shorter Legislature, concurrent resolution of a majority serving in members elected to and disapproved house, either or both of the execu- each basis of a concern about the tive orders on the authority. prerogatives board’s constitutional or variety orders at issue transfer a The executive statutory powers, regulatory, both administrative and superintendent. from the board to the Both orders explicitly provide:

Nothing in this Executive Order should be construed to authority diminish the constitutional of the State Board of provide leadership supervision Education to public education, including all adult education and over institutions, except programs in state as to instructional higher granting institutions education baccalaureate authority degrees, general planning and its to serve as the body coordinating including for all education higher education, legislature and to advise the as to the requirements financial in connection therewith. [Executive 1996-11, 2; 1996-12, ¶ ¶ Order No. Executive Order 5.] additionally specifies Executive Order No. 1996-12 policy making that the board “shall retain its author- ity statutory provisions by regard to these deter- mining policies, any, if on which the administra- provisions shall be based.” tion of these v Governor Opinion of the Court The first critical to our factor determination is that only the executive orders address the powers and upon by duties are conferred the board statute. Contrary plaintiffs’ assertion, the Governor did not constitutionally granted transfer functions from one executive branch or agency, board, entity another. Const 3 does not state that the board § Department to be the head of the of Education. Rather, in language this is contained 301 of the Executive Act of Organization 16.401; MCL MSA 3.29(301).8 Similarly, the functions transferred Executive Order Nos. 1996-11 and 1996-12 were cre Legislature ated through of the enactment rele statutes, directly vant the people through adoption of 5.9§ by plaintiffs, Acting As noted and Lieutenant Governor William Milli- (1) Department ken in Executive No. Order 1965-19 established the of branch, (2) in Education the executive established the state board as the Department Education, (3) head established the principal Education, (4) as the executive officer of the and that, responsible state stated board of education is hereafter “[T]he duties, carrying functions, responsibilities department out file of the in education accordance with the statutes constitution of this Speaker, supra, As state.” noted in House at when the Governor changes through makes within the executive branch the executive order procedure, authority, effect, carry he has the in to enact laws to out those changes. Morris, supra 612, quoting Speaker See also at House to the reorganization powers equal Legisla- effect that the Governor’s are to the subsequent reorganization powers. Thus, initial and ture’s we consider Acting Lieutenant and Governor William in Milliken’s actions Executive equivalent Legislature’s Order No. be 1965-19to in actions Organization the Executive 1965. Act of statutory pow- Executive Order No. 1996-11transfers “administrative ers, duties, “statutory responsibilities” functions and of the board. These powers” 16.401; 3.29(301), 16.107(a); are found MCL MSA MCL MSA 3.29(7)(a), 16.109; 3.29(9). and MCL MSA 1 of Section Executive Order No. statutory approximately 1996-12 transfers one hundred “administrative powers, duties, functions, responsibilities” board, of the as found provisions Michigan Compiled the relevant of the Laws. Section trans- “statutory making powers, duties, functions, fers the board’s responsibilities” rule approximately thirty-nine provisions found in Opinion of the Court constitutionally is not board

Therefore, the providing part required, leader- of its function public supervision ship general educa- over all Department We Education. to head tion, may, under the Governor it axiomatic believe current scheme cl alter the superintendent. Because in function and vest that powers delegated Legislature such have could is free to the Governor initio, ab powers within those redistribute Legislature any manner in which in Education authority originally assigned or such could have supra. Speaker, See House amendment. during argu- plaintiffs’ oral counsel

We note that Legislature appeared could that the to concede ment constitutionally repeal the statutes the sections of delineating No. Executive Order the functions that unwilling to con- was transferred. Counsel 1996-12 Legislature could constitu- that the cede, however, away tionally board. from the such functions transfer ground. standing Clearly, plaintiffs on unstable are Legislature originally these stat- enacted Because the utory provisions, bar to can be no constitutional

there repeal clearly, repeal. Equally would such a a later upon impinge function board’s constitutional supervision leadership over education. Legislature could believe it clear

We also previ- constitutionally that it had functions transfer ously no func- Indeed, we see vested in the board. repeal functions of such between tional difference statutory Compiled in Executive Order Michigan sections cited Laws. The opinion. simply numerous to cite this are too No. 1996-12 v Governor Opinion of the Court Here, and a transfer such functions. the transfers accomplished by question were executive order legislative but, above, rather than action as noted supra, Morris, House Speaker, supra, under when the allocates a the Gover- Legislature function, may change through nor thereafter that allocation reorganization exercise of the Governor’s Speaker, cl 2. As House 5, 1963, 2, under Const art § supra specifically at held: constitution, specifically then, recognizes that,

The where compelled changes feels the Governor to make certain branch, authority, through within the executive he has the procedure, effect, carry executive to order enact laws to only changes. way preclude changes out those to such through properly supported legislative is a In veto. other words, organization, the initial executive branch the after reorganization equal Legisla Governor’s are subsequent reorganization powers. ture’s and initial [Emphasis added.] [10]

Simply as put, by and if argued Governor, Leg the the a statutory function within an place islature can branch agency, executive or the board, entity, Gover by nor may executive order transfer the function to another executive branch agency, board, entity.* or Morris, supra See also at 609: reorganization powers equal Legisla- Governor’s are [T]he to subsequent powers. ture’s initial as well as words, reorganization In other provi- when the Governor acts under this constitutional order, sion means an that is executive order not over- Legislature, Legislature turned it as had acted. if emphasis original; emphasis supplied.] second [First plaintiffs The affidavits that Kathleen Straus and Barbara Roberts Mason submitted the lower to court do not alter our conclusion. We first opinion. Secondly, these a note that affidavits contain mixture of fact and perhaps importantly, more while these affidavits describe the current App 222 the Court contemporaneous legisla that argue also

Plaintiffs the Executive 301 of the enactment § (i.e., tive (i.e., 1965) gubernatorial Act of Organization con actions 1965-9) Order No. of Executive issuance that Const “understandings” stitute be the head board to requiring as be read should Rather, disagree. We of Education. Department of the contempo signaling not as these actions regard we requires that the constitution understanding raneous policy expressing but rather an outcome such desira was then such an outcome determination we do not function Under Const ble. determinations, whether policy of such as reviewers branch, or executive they legislative made are respect express opinion no we therefore superin making thereof, or lack wisdom, of Education. the head tendent require constitution does we hold that the Rather, capacity.12 in this board function may continue declaring that the board By expressly pursuant to which the policies set statutorily created carry out these various shall merely shifted leg- has the Governor responsibilities, to the authority from the board islatively delegated functions, legislatively process by out its derived which the board carries to, logically and there- are inherent follow that such functions it does not constitutionally inseparable from, functions. derived the board’s fore support finding, agree Therefore, that these affidavits we do not powers by plaintiffs, “all executive orders transferred advanced duty overarching power necessary or of the Board’s which are a incident supervision leadership education in of all to exercise supplied.) Michigan.” (Emphasis accompanying People regard, to the we note that the Address In this 1963, 8, would be consid- “The § art 3 stated that Const department of education and head of a state as administrative ered governor his administrative and on be a staff officer such would supplied.) (Emphasis board.” v Governor Opinion of the Court superintendent. perceptible way In no does this any facially infringe pow- board’s constitutional 1963, ers or under Const prerogatives 8, art 3.§ pro- Executive Order 1996-12 Indeed, specifically No. policy- retain its statutory vides that the board shall making powers, duties, functions, responsibili- protected ties. Because the Governor has the ultimate authority of apparent fidelity the board with to Const improper no transfer of its or responsibilities diminution of its ultimate has Bays Dep’t State Police, See occurred. of App 719, 721-722; (no NW2d 620 (1982) improper of delegation decision-making power Ser- of Civil vice Commission where it retained power “ultimate over those decisions with which it is charged”). major analysis

Our second of area concerns whether the Governor’s actions divest board system “control” over the of public education in Mich- igan. We do not believe that the Governor has divested the board ultimate control or that Governor’s actions limit that control violation 3.§

The party challenging constitutionality the facial an act “must establish no that set of circumstances exists under which would be valid. The fact [a]ct . . . might operate unconstitutionally [a]ct under some conceivable set of circumstances insuf- United States v Salerno, . . . .” ficient 739, 745; 481 US 107 S Ct L Ed Further, any 2d 697 “if (1987). reasonably state of facts can be conceived that would act], sustain existence the state of facts at [an the time the law an [or, here, executive was order] enacted must 2d, be assumed.” Am Jur Constitu- Law, p tional 642. In addition, [or, statute “[a] 230 Mich

Opinion of the Court may be order] an here, executive provisions although it meet constitutional lacks which excluding requirements, such if it has terms not justi requirements, in the court is this situation holding was to be in that the statute intended fied require subject requirements, and that those to such in the stat ments are be considered as embodied p Id., 225, ute.” 659.13 that noth- Here, Executive Order No. 1996-11states ing to diminish the consti- within it is to be construed provide leadership authority of board to tutional public general supervision over all education. specifically Thus, the terms of the executive order requirements §8, Const 3. include the easily Additionally, a state of we can conceive of in exercises the facts which Depart- functions of the head of the administrative while board to exer- ment Education continues leadership general supervision its over cise construing No. Indeed, Executive Order education. entirety, what 1996-11 we conclude that this is its 1996-11 the Governor intended. Executive Order No. basically organization the internal involves and, Education would have such, functioning board. It minimal effect on exactly appear type also to be of transfer would envisioned 2 and House Speaker, supra. We do not discount the fact superintendent, successors), could, or his conceiva- bly upon future, and at time in the encroach some constitutionally granted However, board’s functions. Organizations Governor, approval Council of Quoted with 557, 568-569; (1997). 566 NW2d v Governor

Opinion the Court actually and until such an unless encroachment General occurs, ripe adjudication. the issue is not Corp General, Motors Attorney Mich 293 NW 751 (1940).

Similarly, find no bar prohibiting we constitutional by the transfer functions effectuated Executive No. As above, Order 1996-12. noted this order trans- fers the “administrative statutory powers, duties, responsibilities” functions and of the board to the superintendent. argue Plaintiffs that these transfers directly authority affect the of the and board are powers “concerned with the the organization and plaintiffs of Education.” have However, not established that there is no set of circumstances under which the transfers would be valid and we note that, as with Executive No. 1996-11, Order Executive Order No. 1996-12 states within is nothing that it to authority be construed to diminish the constitutional provide of the board to leadership general super- public vision over all Furthermore, education. above, noted Executive explicitly Order No. 1996-12 provides that statutory the board shall retain certain powers responsibilities. policy-making In respect, this we that question note there no the authority board retains its constitutional appoint the superintendent and to determine superintendent’s term of office and, implication, this language suggests that the board also retains power to superinten- shorten term of office of the statutory dent. The also policy-mak- board retains its ing powers ability provide and its “leadership supervision.” powers, These retained board, certainly give authority the board over over We control education. 230 P.J. Fitzgerald, that ulti- us, find facts before therefore, under board. with the remains mate control Execu either believe that we do not conclusion, In No. 1996- Order or Executive No. 1996-11 tive Order any facially14infringes the board’s prerogatives 3. powers under Const or protected board’s has Governor Given system, authority we educational over our ultimate improper trans made no has that the Governor hold responsibilities. We further hold or of its fer are within at issue orders that the executive authority scope under Governor’s § 2. 5, art and, court the circuit decision of

We reverse the judgment 7.216(A)(7),grant pursuant of no to MCR We also defendant. in favor of the of action cause pursuant give MCR to immediate effect this decision jurisdiction. 7.215(E)(2). taxable No not retain We do public sig- question pursuant 7.219,a to MCR costs being involved. nificance J., concurred.

Whttbeck, dissenting part (concurring RJ. in Fitzgerald, majority’s part.) that conclusion I with the in concur within the executive of Education is the State Board superintendent possibility could the that We are not blind anticipate However, that have no reason to we exceed these boundaries. Furthermore, on engage in ultra vires actions. officer will such and, inquire judiciary if the proper complaint, into the matter will the invaded, prerogatives redress the have been board’s adjudication. ripe time, infringement. issue is such no such Until 75, 89-91; Mitchell, (CIO) 330 US America v United Public Workers of Motors, supra (1947); Where a con- at 568. 91 L Ed 754 General S Ct by required anticipatorily, question presented the Court is stitutional Dentistry, authority v Bd decline to rule. Sullivan limits on its to the (1934). 427, 429-430; 256 NW 471 Straus Governor Fitzgerald, RJ. I government. disagree, however, branch of Order 1996- majority’s conclusion Executive Nos. 11 and 1996-12 do not the board’s constitu- infringe 8, 3, tional under Const and that scope the executive orders at issue are within the authority 2. Governor’s under Const

FACTS The facts this matter are not On dispute. December Governor issued Executive “ Order which 1996-11, No. transferred of the [a]ll statutory administrative powers, duties functions and responsibilities” of the State Board of Education “as administrative Department head of the of Education” to superintendent Public Instruction a “Type effect, II In transfer.” Order Executive No. 1996-11 made superintendent, rather than board, head of the of Education. Executive Order No. 1996-11 was to become effective March 10, 1997.

Also on December 1996, the Governor issued Executive Order No. 1996-12, purported which transfer of the statutory administrative powers, “[a]ll duties, functions, responsibilities” board a “Type II transfer.” Under Executive Order No. 1996-12, only the board retained “statutory policy powers, making duties, functions, and responsibilities.” Order Executive No. 1996-12 July was to become 1, effective 1997.

On 3, 1997, plaintiffs March an instituted action in enjoin the lower court enforcement of Executive Order Nos. 1996-11 and 1996-12. Plaintiffs that alleged the 8, executive orders violated Const 3 on that ground the constitution vested the board P.J. Fitzgerald, decide whether to exercise authority

with statutory powers, directly or to the various delegate alleged further and duties. Plaintiffs responsibilities, any Governor to power 3 limits and duties responsibilities, powers, transfer board. prelimi- lower court issued

On March implementation of Executive nary injunction against injunc- a preliminary but denied 1996-11, Order No. implementation of Order No. Executive against tion that there was no immediate ground 1996-12 on because it threatened that executive order harm par- July until 1997. The go was not to into effect summary dispo- thereafter filed cross-motions for ties May 1997, the lower court issued its sition. On The lower court opinion oral on these cross-motions. part: stated change reflects a clear from constitution supervisor

popularly elected supervisory powers, Board with limited and a State [sic] general supervisory powers powers to a State Board with higher public education, except all as to institutions of over superinten- granting degrees; baccalaureate and a education non-voting appointed by the Board to act as the dent chairperson principal and to be executive the board Department a State officer of Education with provided law. duties provides impliably (sic) for the State

The constitution Education. To Board to be head of the Board’s consti- determine otherwise would reduce State authority nullity. to a tutional over education Straus v Governor Opinion by Fitzgerald, P.J. I would in note statement each of the executive they orders at here do the issue not affect State role, comparable leg- Board’s be would passing adding islature a statute and at the end sentence of the statute is not unconstitutional You deter- cannot [sic]. simply by mine the constitutional role of the State Board adding a in an sentence executive order. governor

What is is this case not about whether the has power reorganize govern- the to the executive branch Housespeaker 560; ment. v Governor [sic] [443 (1993)] [(On Remand, NW2d 190 and Morris Governor Remand), (1995)] 214 Mich 543 NW2d 363 After speak clearly on that issue. governor This case about whether the can use his is reor- ganization power way deprives popularly in a which elected State Board of Education of some or all of its con- authority. Housespeaker stitutional and Morris do not [sic] interplay address this issue. Those cases focused on the implementing reorganization between executive orders legislature’s branch executive and the and subse- initial quent power reorganize executive to branch. Supreme . . . Court bound Court’s broad [T]his expansive interpretation powers and of the constitutional popularly vested in a elected State Board of Education. represent These orders an executive unconstitutional trans- authority, power responsibility fer of the Board’s State superintendent. governor’s judicially recog- to the state reorganize nized to the executive do branch extend this far.

The June order, presumably pursuant issued opinion, this oral stated: provides the Mich Const of 1963 State Board

[A]s leadership supervi- to serve in Education capacity Michigan, sion over all education necessarily State Board of Education must serve as the Education, attempted head of App 222 Fitzgerald, P.J. responsibilities, powers, and duties contained transfer contrary 1996-12 are Orders 1996-11 and Executive of 1963. 3 of Mich Const violate was based on a grant court’s order Because the lower de this Court’s review is summary disposition, Corp, v Tixon 203 Coleman-Nichols novo. (1994). 513 NW2d

645, I. CONSTITUTIONAL CONSIDERATIONS 2§ CONST ART A. EXECUTIVE BRANCH REORGANIZATION: 1963, 5, 5, provides: Const § offices, agencies and All executive and administrative govern- branch of state instrumentalities of the executive powers duties, respective functions, ment and their except governor governor and lieutenant for the office higher governing and the bodies of institutions of education by provided constitution, for in shall be allocated law this principal departments. among and within not more than They practicable according grouped far as shall be major purposes. may

Subsequent allocation, governor initial changes organization in of the executive branch make assignment among he or in the of functions its units which necessary administration. Where considers for efficient require law, they changes shall be set these the force of legislature. forth in executive orders and submitted to the days legislature a shall have 60 calendar Thereafter regular session, regular or a full session if of shorter dura- disap- tion, disapprove each executive order. Unless proved in houses a resolution concurred in both majority serving in of the members elected to each house, each order shall become effective at a date thereaf- designated governor. ter to be on the types power Art 2 confers two distinct in power changes The first is the to “make Governor. of the executive branch.” The second organization Straus v Governor P.J. Opinion by Fitzgerald, power is the to “make in the . . . changes assignment of functions its units.” among Both are at in this issue matter.

B. LEADERSHIP AND GENERAL SUPERVISION OVER PUBLIC EDUCA-

TION: CONST ART § 3.

1. LANGUAGE provides pertinent part: Leadership supervision over all educa- tion, including adult programs education and instructional institutions, except in state higher as to institutions of edu- granting degrees, cation baccalaureate vested a state board of general planning education. It shall serve as the coordinating body public education, including for all higher education, legislature and shall advise the as to the requirements financial in connection therewith. appoint superinten- state board of education shall public dent of instruction whose term of office shall be by determined the board. He shall be the chairman of the right board vote, without the responsible and shall be for policies. the execution principal of its He shall be the exec- department utive officer of a state of education which shall provided by have and duties law.

Art 8, 3§ therefore vests five functions in the board. They are:

(a) Exercising “[leadership supervision and general over all public education, including adult education programs instructional in state institutions, except as to institutions of higher education granting baccalaureate degrees.”1

ther referred to in this opinion. baccalaureate ^[1] The exception degrees, relating being to institutions relevant to this higher opinion, education will not be fur- granting Fitzgerald, P.J. planning general

(b) Serving and coordinat- as the including higher body public ing for all education education. Advising Legislature

(c) financial as to the public requirements in connection with education. Appointing superintendent. (d) Determining (e) term of office of superintendent. functions, these

At issue in this case is the first of providing “leadership supervision” over public all education.

2. HISTORY by plaintiffs, pointed out the Northwest Ordi- As provided morality “[r]eligion, nance of 1787 necessary knowledge, being good government happiness mankind, schools and the means of encouraged.” education shall forever be Northwest with this Ordinance of art 3. Consistent declara- every provided Michigan has tion, constitution supervision public statewide over education. provided Accordingly, § 10, for a Const art Superintendent appointed Instruction, of Public to be prescribed by shall be Governor, “whose duties provided popular § law.” for the Superintendent election of of Public Instruction general super- under art have who, 13, 1, “shall vision of and his duties shall be instruction, prescribed law.” Const 9 also cre- charged general supervi- ated an elected board sion over the state normal school and other duties “prescribed by pro- § 2 11, law.” Const art also popular Superintendent vided for the election of the giving responsibility Instruction, of Public him the Governor Opinion by Fitzgerald, RJ. supervision

“general public instruction Const state”; art 6 also continued the limi- tation on the role of the elected board supervision of the state college normal and the state normal schools and to such “prescribed by duties law.” substantially changed roles of the board superintendent. and the No longer were the functions of solely the board to be “pre- scribed law”; rather, as above, outlined 3§ constitutionally recognized five functions board. Delegate George Romney, a member of the Education Committee, explained this change to the convention: thing enlarge

The third it does is to the functions of the board. The given leadership new board of education is and supervision colleges over education other than and universi- elementary secondary ties. This means the schools as well other institutions of an educational character. The thing give third it planning does is to this board overall coordinating responsibility for all of education. This we gives key position have not had. ... It this board the in rec- ommending governor legislature steps and the all the taken to meet our educational needs in the state.

... In enlargement connection with the of the board’s activities, important I think it enlarge to know that this ment of the board’s activities does not increase the author ity beyond granted present of the board that now in the superintendent public constitution to the instruction. The present gives constitution very authority education,

instruction broad over but he is properly equipped standpoint either from the of staff department standpoint ability or from the to cover discharge contemplates full field to that function. This the establishment of this board with these broad functions certainly, provides this a more suitable means of dis App 222 250 230 Mich by Opinion Fitzgerald, P.J. important Record,

charging these functions. Official Con [1 1961, p Convention stitutional 1190.][2] 3

C. CONSTRUING CONST 19632 INTENT, UNDERSTANDING, AND CONTEMPO- 1. ORIGINAL COMMON

RANEOUS CONSTRUCTION Supreme has Michigan long The Court held interpreted constitution must be in light origi- nal intent and of its drafters. understanding See, e.g., People DeJonge (After Remand), 266, 274; v 442 Mich 127 (1993); 501 NW2d Committee Constitutional Secretary State, 425 Mich 342; 389 Reform NW2d 430 framers’ (1986). The intent must be under- conjunction stood in with the intentions and under- standing by of the constitution held its ratifiers. emphasized by Delegate Brake, D. See also the comments of Hale plaintiffs: being true, governor being politician, governor That as a politician, being profes- must be a the other members of the board they educators, be, my premise sional should first is that the 8 lay policy

members of the board should down the to be followed by They They this board. should make the decisions. know what problems They are. should be the dominant force. Romney say It seems to me that Mr. while didn’t so that one of objectives principal up suggested in the set that has been to us moving department here that of of education a little bit fur- away political They pick ther from the arena. The board is elective. having instruction instead of him people past. elected as in the Then the committee turns right right straight political around and comes back toward the by putting politician arena the chief of the state on the board. My premise ought first is that the board to run this show. Offi- [1 Record, 1961, p (emphasis cial Constitutional Convention supplied).] constitution, construing It has been said that in the technical rules statutory apply. Maryland, (4 construction do not McCulloch v 17 US Wheat) 316, 407; (1819); City Attorney 4 L Ed 579 Traverse School Dist v General, 390, 405; (1971). 384 Mich 185 NW2d 9 v Governor Fitzgerald, RJ. may supra at 274. The intent of the framers DeJonge, use of the determined, part, through at least be City Traverse understanding.” rule of “common General, 390, 405; Attorney School Dist v Cooley Cooley’s Justice (1971). 185 NW2d rule as follows: Lim described this people people. A made for the constitution is interpretation given be it is that which rea that should people themselves, minds, great sonable the mass of the give would it. “For as the Constitution does not derive its framed, peo from the convention which but from the force ple it, intent to be arrived at the who ratified is that of supposed they people, and it is not to be have looked any meaning employed, in dark or abstruse the words they accepted but rather that have them in the sense most understanding, obvious to the common and ratified the designed instrument the belief that that was the sense to conveyed.”[4] be 5

Similarly, contemporaneous legislative4 judicial6 interpretations aid in intent ascertaining original understanding. the common 4 approval Organizations Governor, Quoted with in Council v 455 of 557, 569; (1997); Soap Detergent Mich 566 NW2d 208 & Ass’n v Natural Comm, 728, 745; (1982);

Resources 415 Mich 330 NW2d 346 Council No Comm, 385, 405; AFSCME Civil Service 408 Mich 292 NW2d 442 (1980); City Dist, supra 405; Traverse School at 5 Michigan, 957, 980; See Harmelin v 501 US 111 S Ct 115 L Ed (1991), necessary 2d 836 in which Mr. Justice Scalia stated that it was Congress, persua examine actions of the First which are of course “[t]he sive evidence of what the Constitution means.” 6 Advisory Opinion Constitutionality See Re: 1972 PA 389 441, 470; Supreme (1973), Michigan Mich NW2d which Court stated: determining meaning A second consideration in constitu- analysis language precedent.

tional is the How have the courts interpreted language? pursuing precedent, this In those cases proximate decided at a time to the of the constitution ratification 230 Mich Opinion by Fitzgerald, P.J. 2. CIRCUMSTANCES AND PURPOSES A second rule of constitutional construction requires consideration of the circumstances surround- adoption ing provision of a constitutional and the purposes sought accomplished. Kearney to be In v Bd Auditors, State 666, 673; 155 NW 510 of (1915), Michigan Supreme Court stated: construing provisions In where the mean may ing questioned, regard be the court should have adoption leading purpose circumstances to their and the sought accomplished.[7] to be Supreme Michigan As stated Court in House Speaker v Governor, 581; 506 NW2d 190 (1993), discerning the most instructive tool for surrounding adoption provi- circumstances sion is the floor debates in the Constitutional Conven- tion record. However, the consideration of the debates is limited because:

They expressions concepts are speak- individual as the perceive (or explain ers them make an them). effort they Although illuminating, affording are sometimes a sense direction, they are not decisive as to the intent of the (or people) convention adopting of the the mea- Michigan Regents Michigan, sures. v [Univ 395 Mich 59-60; (1975).] 235 NW2d 1 However, the Court also noted that these floor particularly helpful debates are “when we find in recurring explanation binding debates a thread of important they meaning are in that better reflect of the lan- guage of the constitution at the time it was written. Soap Detergent Ass’n, 4, supra See & City n at and Traverse Dist, supra School at 405. Governor P.J. by Fitzgerald, Id. at concept.” the whole of together 60. AVOIDANCE OF CONSTITUTIONAL INVALIDITY

3. requires A third rule of constitutional construction inteipretation the avoidance of an that creates a con- Speaker, supra House invalidity. at 585. stitutional 4. AND PLAIN COMPLETE EFFECT MEANING interpretation prongs. This rule of contains two is to effect to the entire section of the prong give first prong give constitution. The second is to the words of ordinary the constitution their usual and meaning. People v Bd Canvassers, State 523, 529; 35 NW2d 669 (1949).

n. THE BOARD VERSUS THE SUPERINTENDENT AS THE “HEAD” OF THE DEPARTMENT OF EDUCATION 1996-11, effect,

Executive Order No. made the board, rather than the superintendent, the head of the Department of Education. Plaintiffs that argue constitutionally duty provide vested of the board to leadership supervision and general over all education, necessarily requires the board to be the head of Department of Education. The lower court agreed, finding by implication Const 1963 provides for Depart- the board to be the head of the ment of Education. explicitly 3 does not state that §

the board is to be the head of the of Edu- language is, however, cation. This contained in Organization Executive Act of MCL 16.401; MSA Both of the Governor’s 3.29(301). implicated under art 2 are under Executive Order No. 1996-11. Empowering the as the 254 Opinion P.J. Fitzgerald, Department certainly head of the of Education consti “change” organization tutes a in the executive Similarly, serving branch. to the extent that as the Department head of the of Education constitutes a certainly “function,” Executive Order No. 1996-11 super transferred that function from the board to the question change Thus, intendent. is whether the organization accomplished in or transfer of functions upon impinged Executive Order No. 1996-11 providing board’s constitutional function of leader ship general supervision public over all education Michigan.8 in constitutionally

I would hold that the board is empowered, part providing of its function of lead- ership general supervision public over all educa- tion in state, to head the of Educa- Legislature contemporaneously end, tion. To this vested this function in the board in 301 of the Exec- Organization utive Act of 1965 and Lieutenant and Acting Governor Milliken did the same in Executive regard signaling Order No. 1965-19.I these actions as contemporaneous understanding that the constitu- requires tion such an outcome. contemporaneous judicial interpretations

Likewise, support holding. Welling this In Bd Ed, Livonia (1969), 382 Mich 620, 625; 171 NW2d Justice concurring opinion joined by Justices Black, T. M. and T. Kavanagh, G. stated: Kavanagh argue, find, Plaintiffs do not and the lower court did that Execu- impinged upon tive Order No. 1996-11 the board’s other four delineated (i.e., serving general planning functions under Const as the body coordinating education, including higher for all educa- tion; advising Legislature regard requirements to the financial therewith; appointing superintendent; determining connection superintendent). term of office of the v Governor P.J. Fitzgerald,

Formerly responsibility for such admin- the constitutional by upon istration, “prescribed law,” devolved an duties public (Const instruction elected however, By fram- 2). the Constitution of the people adopted policy proposed a new ers and the system. the board of edu- administration of the Now State “prescribed by cation, by qualifying those words unfettered by law,” exclusively “provided charged law” or is armed and power responsibility administering pub- the with the system legislature up has and now lic school which the set By pursuant eighth maintains to section article. sec- article, tion 3 of the same the board has been directed —not by by people superin- legislature but the lead and —to system become, exclusively, tend the the administrar specific policy-maker having tive That directive thereof. people, may legislature come from the law inter- (emphasis fere with its execution the board. [Id. supplied).]

Indeed, general supervisory power over education formerly in the superintendent vested under the 1908 is, reposed Constitution under Const Type provided board. Under a II transfer as in Execu- 1996-11, tive Order No. the board loses autonomous Soap control over its functions. & Detergent Ass’n v Natural Comm, 728, 748-749; Resources NW2d 346 (1982); MCL MSA 16.103(b); 3.29(3)(b). change proposed by Executive Order No. 1996-11 public would return the running education to the system place under the Constitution of 1908. If Executive Order implemented, No. 1996-11 is superintendent will again once become the main in voice education in Such a Michigan. change essentially would power eliminate the transfer of they voted on people when voted for the 1963 constitution and would render transfer meaningless. 230

Opinion by Fitzgerald, P.J. m. THE THE TRANSFER OF STATUTORY “FUNCTIONS” FROM BOARD TO THE SUPERINTENDENT.

Executive Order No. 1996-12 transferred the statutory powers, duties, functions, “administrative responsibilities” of the board set forth in some Compiled Michigan 139 different sections of the Laws superintendent. argue from the board to the Plaintiffs directly authority that these transfers affect the agreed, board to “lead and control.” The lower court finding represent that the executive orders an uncon- authority, power, stitutional transfer of the board’s responsibility superintendent. Here, the Governor’s under art changes assignment among make in the of functions Clearly, the units of the executive branch are at issue. authority § the Governor has the 5, under art to authority, powers, transfer all the duties, functions, responsibilities legislatively princi- of a created pal department gubematorially principal to a created department. Speaker, supra House at 564. I believe authority respect that the Governor has similar legislatively to created boards and commissions. legislatively Here, however, the board is anot created entity. constitutionally entity The board ais created and, therefore, the Governor cannot exercise his art powers impair powers § 5, or restrict derived directly people from the under the constitution. Mich- igan Rights Civil Clark, Comm v (1973).Although sought NW2d912 the functions to be transferred Administrative Order No. 1996-12were Legislature through created enactment of the statutes, relevant the statutes were enacted to vest pursuant functions in the board to the constitutional “leadership directive that the board have and control” Governor Fitzgerald, P.J. Thus, education. the transfer of over functions derogates powers the constitutional of the board.

Simply put, appears dispute there to be no although authority repeal has Legislature statutorily functions, the Governor does have granted authority statutorily to transfer such granted func- given pursuant tions that were to the board responsibility placed constitutional on the board to provide leadership supervision over all public education in Michigan. Although holding this does not avoid a constitutional I invalidity, would conclude that this is most consistent with the holding common of art understanding and art 3 and § § interpretation is the minds, great that “reasonable people mass of the themselves,” would to these give provisions. sum,

In I believe that Executive Order Nos. 1996-11 and 1996-12 the board’s infringe under Const 3 and that the executive scope orders at issue are not within the of the Gover- authority nor’s under Const 2. I would affirm the permanent injunction lower court’s against implementation of these orders.

Case Details

Case Name: Straus v. Governor

Court Name: Michigan Court of Appeals

Date Published: Sep 10, 1998

Citation: 583 N.W.2d 520

Docket Number: Docket 204457

Court Abbreviation: Mich. Ct. App.