[nfbmi-talk] important mi case law relative to illegal eo 2012-12
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Mon Jul 16 18:01:33 UTC 2012
Extremely Important Case on Executive Orders Stripping Board of Ed Powers
State of Michigan Court Opinion
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
KATHLEEN STRAUS, BARBARA ROBERTS
MASON, MARRIANNE McGUIRE, and
HERBERT MOYER,
Plaintiffs-Appellees,
v No. 204457
Ingham Circuit Court
LC No. 97-85526 AW
GOVERNOR OF MICHIGAN,
Defendant-Appellant.
Before: Fitzgerald, P.J., and O’Connell and Whitbeck, JJ.
FITZGERALD, P.J. (concurring in part and dissenting in part.)
I concur with the majority’s conclusion that the Board is
within the executive branch of government. I disagree, however,
with the majority’s conclusion that Executive Orders 1996-11 and
1996-12 do not infringe upon the Board’s constitutional powers
under Const 1963, art 8, § 3, and that the executive orders at
issue are within the scope of the Governor’s authority under
Const 1963, art 5, § 2.
FACTS
The facts in this matter are not in dispute. On December
19, 1996, the Governor issued Executive Order 1996-11, which
transferred “[a]ll of the administrative statutory powers, duties
functions and responsibilities” of the State Board of Education
[State Board] “as administrative head of the Department of
Education” to the Superintendent of Public Instruction by a “type
II transfer.” In effect, Executive Order 1996-11 made the
Superintendent, rather than the Board, the head of the Department
of Education. Executive Order 1996-11 was to become effective
March 10, 1997.
Also on December 19, 1996, the Governor issued Executive
Order 1996-12, which purported to transfer “[a]ll of the
administrative statutory powers, duties, functions and
responsibilities” of the State Board to the Superintendent by a
“type II transfer.” Under Executive Order 1996-12, the State
Board of Education retained only “statutory policy making powers,
duties, functions, and responsibilities.” Executive Order 1996-
12 was to become effective July 1, 1997.
On March 3, 1997, plaintiffs instituted an action in the
lower court to enjoin Executive Orders 1996-11 and 1996-12.
Plaintiffs alleged that the executive orders violated Const 1963,
art 8, § 3 on the ground that the Constitution vested the Board
with the authority to decide whether to exercise directly or to
delegate the various statutory powers, responsibilities, and
duties. Plaintiffs further alleged that art 8, § 3 limits any
power of the Governor to transfer powers, responsibilities, and
duties of the Board.
On March 7, 1997, the lower court issued a preliminary
injunction against implementation of Executive Order 1996-11, but
denied a preliminary injunction against implementation of
Executive Order 1996-12 on the ground that there was no immediate
harm threatened by that executive order as it was not to go into
effect until July 1, 1997. The parties thereafter filed cross-
motions for summary disposition. On May 29, 1997, the lower
court issued its oral opinion on these cross motions. The lower
court stated in part:
The 1963 constitution reflects a clear change from
a popularly elected superintendent with general
supervisor [sic] powers, and a State Board with limited
supervisory powers to a State Board with general
supervisory powers over all public education, except as
to institutions of higher education granting
baccalaureate degrees; and a superintendent appointed
by the Board to act as the non-voting chairperson of
the board and to be the principal executive officer of
a State Department of Education with powers and duties
provided by law.
* * *
The constitution impliably (sic) provides for the
State Board to be the head of the Department of
Education. To determine otherwise would reduce the
State Board’s constitutional authority over education
to a nullity .
* * *
I would note that the statement in each of the
executive orders at issue here that they do not affect
the State Board’s constitutional role, would be
comparable to the legislature passing a statute and
adding a sentence at the end of the statute is not
unconstitutional [sic]. You cannot determine the
constitutional role of the State Board simply by adding
a sentence in an executive order.
What this case is not about is whether the
governor has the power to reorganize the executive
branch of government. Housespeaker [sic] v Governor,
443, Mich. 560, 1993, and Morris v Governor, 214, Mich.
App. 604, 1995, speak clearly on that issue.
This case is about whether the governor can use
his reorganization power in a way which deprives the
popularly elected State Board of Education of some or
all of its constitutional authority. Housespeaker
[sic] and Morris do not address this issue. Those
cases focused on the interplay between executive orders
implementing reorganization of the executive branch and
the legislature’s initial and subsequent power to
reorganize the executive branch.
* * *
…[T]his Court is bound by the Supreme Court’s broad and
expansive interpretation of the constitutional powers
vested in a popularly elected State Board of Education.
These executive orders represent an unconstitutional
transfer of the State Board’s authority, power and
responsibility to the state superintendent. The
governor’s judicially recognized powers to reorganize
the executive branch do not extend this far.
The June 16 order, presumably issued pursuant to this oral
opinion, stated that:
…[A]s the Mich Const of 1963 provides for the State
Board of Education to serve in a leadership and general
supervision capacity over all public education in
Michigan, the State Board of Education necessarily must
serve as the head of the Department of Education, and
the attempted transfer of powers, responsibilities, and
duties contained in Executive Orders 1996-11 and 1996-
12 are contrary to and violate art 8, § 3 of Mich Const
of 1963.
Because the lower court’s order was based on a grant of summary
disposition, this Court’s review is de novo. Coleman-Nichols v
Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994).
I. CONSTITUTIONAL CONSIDERATIONS
A. EXECUTIVE BRANCH REORGANIZATION: CONST 1963, ART 5, § 2
Const 1963, art 5, § 2 provides that:
All executive and administrative offices, agencies
and instrumentalities of the executive branch of state
government and their respective functions, powers and
duties, except for the office of governor and
lieutenant governor and the governing bodies of
institutions of higher education provided for in this
constitution, shall be allocated by law among and
within not more than 20 principal departments. They
shall be grouped as far as practicable according to
major purposes.
* * *
Subsequent to the initial allocation, the governor
may make changes in the organization of the executive
branch or in the assignment of functions among its
units which he considers necessary for efficient
administration. Where these changes require the force
of law, they shall be set forth in executive orders and
submitted to the legislature. Thereafter the
legislature shall have 60 calendar days of a regular
session, or a full regular session if of shorter
duration, to disapprove each executive order. Unless
disapproved in both houses by a resolution concurred in
by a majority of the members elected to and serving in
each house, each order shall become effective at a date
thereafter to be designated by the governor.
Art 5, § 2 confers two distinct types of power on the governor.
The first is the power to “make changes in the organization of
the executive branch.” The second is the power to “make changes
in the … assignment of functions among its units.” Both powers
at are issue in this matter.
B. LEADERSHIP AND GENERAL SUPERVISION OVER PUBLIC EDUCATION:
CONST 1963, ART 8, § 3.
1. LANGUAGE
Const 1963, art 8, § 3 provides in pertinent part:
Leadership and general supervision over all public
education, including adult education and instructional
programs in state institutions, except as to
institutions of higher education granting baccalaureate
degrees, is vested in a state board of education. It
shall serve as the general planning and coordinating
body for all public education, including higher
education, and shall advise the legislature as to the
financial requirements in connection therewith.
The state board of education shall appoint a
superintendent of public instruction whose term of
office shall be determined by the board. He shall be
the chairman of the board without the right to vote,
and shall be responsible for the execution of its
policies. He shall be the principal executive officer
of a state department of education which shall have
powers and duties provided by law.
Art 8, § 3 therefore vests five functions in the Board. They
are:
(a) Exercising “[l]eadership and general supervision over all
public education, including adult education and instructional
programs in state institutions, except as to institutions of
higher education granting baccalaureate degrees.”1
(b) Serving as the general planning and coordinating body for
all public education including higher education.
(c) Advising the Legislature as to the financial requirements in
connection with public education.
(d) Appointing the Superintendent.
(e) Determining the term of office of the Superintendent.
At issue in this case is the first of these functions, providing
“leadership and general supervision” over all public education.
2. HISTORY
As pointed out by plaintiffs, the Northwest Ordinance of
1787 provided that, “Religion, morality, and knowledge being
necessary to good government and the happiness of mankind,
schools and the means of education shall forever be encouraged.”
Northwest Ordinance of 1787, art 3. Consistent with this
declaration, every Michigan constitution has provided for
statewide supervision over public education.
Accordingly, Const 1835, art 10, § 1 provided for a
Superintendent of Public Instruction, to be appointed by the
Governor, “whose duties shall be prescribed by law.” Const 1850,
art 8, § 1 provided for the popular election of a Superintendent
of Public Instruction who, under art 13, §1, “shall have the
general supervision of public instruction and his duties shall be
prescribed by law.” Const 1850, art 13, § 9 also created an
elected Board charged with general supervision over the state
normal school and other duties “prescribed by law.” Const 1908,
art 11, § 2 also provided for the popular election of the
Superintendent of Public Instruction, giving him the
responsibility for “general supervision of public instruction in
this state;” Const 1908, art 11, § 6 also continued the
limitation on the role of the elected Board to supervision of the
state normal college and the state normal schools and to such
duties “prescribed by law.”
Const 1963, art 8, § 3 substantially changed the roles of
the Board and the Superintendent. No longer were the functions
of the State Board to be solely “prescribed by law”; rather, as
outlined above, art 8, § 3 constitutionally recognized five
functions of the Board. Delegate Romney, a member of the
Education Committee, explained this change to the convention:
The third thing it does is to enlarge the function of
the board. The new board of education is given
leadership and supervision over education other than
colleges and universities. This means the elementary
and secondary schools as well as other institutions of
an educational character. The third thing it does is
to give this board overall planning and coordinating
responsibility for all education. This we have not
had….It gives this board the key position in
recommending to the governor and the legislature all
the steps taken to meet our educational needs in the
state.
…In connection the enlargement of the board’s
activities, I think it is important to know that this
enlargement of the board’s activities does not increase
the authority of the board beyond that now granted in
the present constitution to the superintendent of
public instruction. The present constitution gives the
superintendent of public instruction very broad
authority over education, but he is not properly
equipped either from the standpoint of staff and
department or from the standpoint of ability to cover
the full field to discharge that function. This
contemplates the establishment of this board with these
broad functions, and certainly, this provides a more
suitable means of discharging these important
functions. [1 Official Record, Constitutional
Convention 1961, p 1190.]2
C. CONSTRUING CONST 19633
1. ORIGINAL INTENT, THE COMMON UNDERSTANDING, AND
CONTEMPORANEOUS CONSTRUCTION
The Michigan Supreme Court has long held that the
constitution must be interpreted in light of the original intent
and understanding of its drafters. See, e.g., People v DeJonge
(After Rem), 442 Mich 266, 274; 501 NW2d 127 (1993), Committee
for Constitutional Reform v Secretary of State, 425 Mich 336,
342; 389 NW2d 430 (1986). The framers’ intent must be understood
in conjunction with the intentions and understanding of the
constitution held by its ratifiers. DeJonge, supra at 274. The
intent of framers may be determined, at least in part, through
the use of the rule of “common understanding.” Traverse City
School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9
(1971). Justice Cooley described this rule as follows:
A constitution is made for the people and by the
people. The interpretation that should be given it is
that which reasonable minds, the great mass of the
people themselves, would give it. “For as the
Constitution does not derive its force from the
convention which framed, but from the people who
ratified it, the intent to be arrived at is that of the
people, and it is not to be supposed that they have
looked for any dark or abstruse meaning in the words
employed, but rather that they have accepted them in
the sense most obvious to the common understanding, and
ratified the instrument in the belief that that was the
sense designed to be conveyed.” [Cooley’s Const Lim
81.]4
Similarly, contemporaneous legislative5 and judicial6
interpretations aid in ascertaining original intent and the
common understanding.
2. CIRCUMSTANCES AND PURPOSES
A second rule of constitutional construction requires
consideration of the circumstances surrounding the adoption of a
constitutional provision and the purposes sought to be
accomplished. In Kearney v Bd of State Auditors, 189 Mich 666,
673; 155 NW 510 (1915), the Michigan Supreme Court stated:
In construing constitutional provisions where the
meaning may be questioned, the court should have regard
to the circumstances leading to their adoption and the
purpose sought to be accomplished.7
As stated by the Michigan Supreme Court in House Speaker v
Governor, 443 Mich 560, 581; 506 NW2d 190 (1993), the most
instructive tool for discerning the circumstances surrounding the
adoption of the provision is the floor debates in the
Constitutional Convention record. However, the consideration of
the debates is limited because:
They are individual expressions of concepts as the
speakers perceive them (or make an effort to explain
them). Although they are sometimes illuminating,
affording a sense of direction, they are not decisive
as to the intent of the general convention (or of the
people) in adopting the measures. [Regents of the Univ
of Michigan v State of Michigan, 395 Mich 52, 59-60;
235 NW2d 1 (1975).]
However, the Court also noted that these floor debates are
particularly helpful “when we find in the debates a recurring
thread of explanation binding together the whole of a
constitutional concept.” Id. at 60.
3. AVOIDANCE OF CONSTITUTIONAL INVALIDITY
A third rule of constitutional construction requires the
avoidance of an interpretation that creates a constitutional
invalidity. House Speaker, supra at 585.
4. COMPLETE EFFECT AND PLAIN MEANING
This rule of interpretation contains two prongs. The first
prong is to give effect to the entire section of the
constitution. The second prong is to give the words of the
constitution their usual and ordinary meaning. People v Bd of
State Canvassers, 323 Mich 523, 529; 35 NW2d 669 (1949).
II. THE STATE BOARD VERSUS THE SUPERINTENDENT AS THE “HEAD” OF
THE DEPARTMENT OF EDUCTION
Executive Order 1996-11, in effect, made the Superintendent,
rather than the Board, the head of the Department of Education.
Plaintiffs argue that the constitutional duty vested in the
Board, to provide leadership and general supervision over all
public education, necessarily requires the Board to be the head
of the Department of Education. The lower court agreed, finding
that Const 1963 by implication provides for the Board to be the
head of the Department of Education.
Const 1963, art 8, § 3 does not explicitly state that the
Board is to be the head of the Department of Education. This
language is, however, contained in § 301 of the Executive
Organization Act of 1965, MCL 16.401; MSA 3.29(301). Both of the
Governor’s powers under art 5, § 2 are implicated under Executive
Order 1996-11. Empowering the Superintendent as the head of the
Department of Education certainly constitutes a “change” in the
organization of the executive branch. Similarly, to the extent
that serving as the head of the department of education
constitutes a “function,” Executive Order 1996-11 certainly
transferred that function from the Board to the Superintendent.
Thus, the question is whether the change in organization or
transfer of functions accomplished by Executive Order 1996-11
impinged upon the Board’s constitutional function of providing
leadership and general supervision over all public education in
Michigan.8
I would hold that the Board is constitutionally empowered,
as part of its function of providing leadership and general
supervision over all public education the state, to head the
Department of Education. To this end, the Legislature
contemporaneously vested this function in the Board in § 301 of
the Executive Organization Act of l965 and Lieutenant and Acting
Governor Milliken did the same in Executive Order 1965-19. I
regard these actions as signaling a contemporaneous understanding
that the constitution requires such an outcome.
Likewise, contemporaneous judicial interpretations support
this holding. In Welling v Livonia, 382 Mich 620, 625; 171 NW2d
545 (1969) (Black, J., joined by T.M. Kavanagh and T. G.
Kavanagh, JJ., concurring), Justice Black stated in a concurring
opinion:
Formerly the constitutional responsibility for such
administration, with duties “prescribed by law,”
devolved upon an elected superintendent of public
instruction (Const 1908, art 11, § 2). By the
Constitution of 1963, however, the framers proposed and
the people adopted a new policy for administration of
the system. Now the State board of education,
unfettered by those qualifying words “prescribed by
law” or “provided by law,” is armed and charged
exclusively with the power and responsibility of
administering the public school system which the
legislature has set up and now maintains pursuant to
section 2 of the eighth article. By section 3 of the
same article, the board has been directed—not by the
legislature but by the people—to lead and superintend
the system and become, exclusively, the administrative
policy-maker thereof. That specific directive having
come from the people, the legislature may not by law
interfere with its execution by the board.” [Id.;
emphasis supplied.]
Indeed, the general supervisory power over education formerly
vested in the superintendent under the 1908 Constitution is,
under Const 1963, reposed in the Board. Under a type II transfer
as provided in Executive Order 1996-11, the Board loses
autonomous control over its functions. Soap & Detergent Ass’n v
Natural Resources Commission, 415 Mich 728, 748-749; 330 NW2d 346
(1982); MCL 16.103(b); MSA 3.29(3)(b). The change proposed by
Executive Order 1996-11 would return the running of public
education to the system in place under the Constitution of 1908.
If Executive Order 1996-11 is implemented, the Superintendent
will once again become the main voice in public education in
Michigan. Such a change would essentially eliminate the transfer
of power voted on by the people when they voted for the 1963
Constitution and would render the transfer meaningless.
III. THE TRANSFER OF STATUTORY “FUNCTIONS” FROM THE
STATE BOARD TO THE SUPERINTENDENT.
Executive Order 1996-12 transferred the “administrative
statutory powers, duties, functions and responsibilities”
[emphasis supplied] of the Board set forth in some 139 different
sections of the Michigan Compiled Laws from the Board to the
Superintendent. Plaintiffs argue that these transfers directly
impact the authority of the Board to “lead and control.” The
lower court agreed, finding that the executive orders represent
an unconstitutional transfer of the Board’s authority, power, and
responsibility to the Superintendent.
Here, the Governor’s powers under art 5, § 2 to make changes
in the assignment of functions among the units of the executive
branch are at issue. Clearly, the Governor has the authority
under art 5, § 2 to transfer all the authority, powers, duties,
functions, and responsibilities of a legislatively created
principal department to a gubernatorially created principal
department. House Speaker, supra at 564. I believe that the
Governor has similar authority with respect to legislatively
created boards and commissions. Here, however, the Board is not
a legislatively created entity. The Board is a constitutionally
created entity and, therefore, the Governor cannot exercise his
art 5, § 2 powers to impair or restrict powers derived directly
from the people under the constitution. Michigan Civil Rights
Comm v Clark, 390 Mich 717; 212 NW2d 912 (1973). Although the
functions sought to be transferred by Administrative Order 1996-
12 were created by the Legislature through enactment of the
relevant statutes, the statutes were enacted to vest functions in
the Board pursuant to the constitutional directive that the Board
have “leadership and control” over public education. Thus, the
transfer of functions derogates the constitutional powers of the
Board.
Simply put, although there appears to be no dispute that the
Legislature has authority to repeal statutorily granted
functions, the Governor does not have the authority to transfer
such statutorily granted functions that were given to the Board
pursuant to the constitutional responsibility placed on the Board
to provide leadership and general supervision over all public
education in Michigan. Although this holding does not avoid a
constitutional invalidity, I would conclude that this holding is
most consistent with the common understanding of art 5, § 2 and
art 8, § 3 and is the interpretation that “reasonable minds, the
great mass of the people themselves,” would give to these
provisions.
In sum, I believe that Executive Orders 1996-11 and 1996-12
infringe upon the Board’s constitutional powers under Const 1963,
art 8, § 3, and that the executive orders at issue are not within
the scope of the Governor’s authority under Const 1963, art 5, §
2. I would affirm the lower court’s permanent injunction against
implementation of these orders.
/s/ E. Thomas Fitzgerald
1 The exception relating to institutions of higher education
granting baccalaureate degrees, not being relevant to this
opinion, will not be further referred to in this opinion.
2 See also the comments of Delegate Brake, emphasized by
plaintiffs:
That being true, the governor being a politician, as a
governor must be a politician, the other members of the
board being professional educators, as they should be,
my first premise is that the 8 members of the board
should lay down the policy to be followed by this
board. They should make the decisions. They know what
the problems are. They should be the dominant force.
It seems to me that while Mr. Romney didn’t say so that
one of the principal objectives in the set up that has
been suggested to us here is that of moving the
department of education a little bit further away from
the political arena. The board is elective. They pick
the superintendent of public instruction instead of
having him elected by the people as in the past. Then
the committee turns right around and comes right
straight back toward the political arena by putting the
chief politician of the state on the board.
My first premise is that the board ought to run this
show. [1 Official Record, Constitutional Convention
1961, p 1193; emphasis supplied.]
3 It has been said that in construing a constitution, the
technical rules of statutory construction do not apply.
McCulloch v Maryland, 17 US (4 Wheat) 316, 407; ;4 LEd 579
(1819); Traverse City School Dist, infra at 405; 185 NW2d 9
(1971).
4Quoted with approval in Council of Organizations v Governor, 455
Mich 557, 569; 566 NW2d 208 (1997); Soap & Detergent Ass’n, infra
at 745; Council No 11, AFSCME v Civil Service Comm, 408 Mich 385,
405; 292 NW2d 442 (1980); Traverse City School Dist, supra at
405;
5 See Harmelin v Michigan, 501 US 957, 980; 111 S Ct 2680; 115 L
Ed2d 836 (1991) in which Mr. Justice Scalia stated that it was
necessary to examine “[t]he actions of the First Congress, which
are of course persuasive evidence of what the Constitution
means….”
6 See Advisory Opinion Re: Constitutionality of 1972 PA 294, 389
Mich 441, 470; 208 NW2d 469 (1973) in which the Michigan Supreme
Court stated:
A second consideration in determining the meaning
of constitutional language is the analysis of
precedent. How have the courts interpreted this
language? In pursuing precedent, those cases decided
at a time proximate to the ratification of the
constitution are important in that they better reflect
the meaning of the language of the constitution at the
time it was written.
7 See Soap & Detergent Ass’n, supra at 745 and Traverse City
School Dist, supra at 405.
8 Plaintiffs do not argue, and the lower court did not find, that
Executive Order 1996-11 impinged upon the State Board’s other
four delineated functions under Const 1963, art 8, § 3 (i.e.
serving as the general planning and coordinating body for all
public education, including higher education; advising the
Legislature as to the financial requirements in connection
therewith; appointing the Superintendent; and determining the
term of office of the Superintendent.)
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