AM. FEDERATION OF STATE, CTY. & MUNICIPAL EMPLOYEES COUNCIL NO 23 v. Recorder's Court Judges

248 N.W.2d 220, 399 Mich. 1, 1976 Mich. LEXIS 205, 94 L.R.R.M. (BNA) 2392

• Court: Michigan Supreme Court
• Decided: December 27, 1976
• Docket: 57235, (Calendar No. 10)
• Status: Published

Opinions

Lindemer, J.

(to affirm). We believe the Recorder’s Court Judges were justified in refusing to enter into binding arbitration on the grievance filed by Chase S. Osborn, IV. Appellant Osborn was discharged from employment as a probation officer pursuant to the provisions of MCLA 771.10; MSA 28.1140. The dissent finds § 15 of PERA controls and would order the Recorder’s Court Judges to submit to binding arbitration. In so holding, they have resolved a conflict between two state statutes in favor of PERA, the more general statute. This is in violation of the rule that

"In case of conflict between 2 such legislative enactments the special statute or code must prevail. This is the commonly-accepted view in dealing with such conflicts. In Attorney General, ex rel Owen v Joyce, 233 Mich 619 [207 NW 863 (1926)], the rule suggested was applied although the special law preceded in its enactment the general statute.” Imlay Twp School Dist v State Bd of Ed, 359 Mich 478, 485; 102 NW2d 720 (1960).

We believe the specific provision of MCLA 771.10; MSA 28.1140 should be held to be the only procedure necessary for the discharge of a probation officer. Probation officers are agents of the courts. While the Michigan Corrections Commission is charged with the duty of appointment and removal of probation officers, they do so at the recommendation of the judges. Probation officers perform duties particularly central to the administration of criminal justice. MCLA 771.14; MSA 28.1144 directs that a probation officer must conduct a presentence investigation and report this information to the trial judge. (Perhaps under the dissenting opinion AFSCME could force the Recorder’s Court Judges to collectively bargain on whether or not they would have to continue to prepare presentence reports.) Judges must place great reliance on the ability of their probation officers to prepare accurate reports for use at sentencing. Additionally, probation officers are required to supervise persons placed on probation under the regulations as prescribed by the courts. A judge’s ability to discharge his judicial functions can be affected by the capability of his probation officer.

In the private sector, the grievance procedure is necessary to guarantee that an employee cannot be terminated at the whim of an employer. Grievance procedures insure that the employee is given a hearing at which he has an opportunity to present his side of the dispute. In the present case, MCLA 771.10; MSA 28.1140 serves that function. It guarantees the probation officer a full hearing at which the court must determine the probation officer was guilty of incompetence, misconduct, neglect of duty or refusal to carry out the order of the court before it can recommend removal. Submission of that decision to a grievance procedure with binding arbitration could result in a reinstatement of a probation officer in which the court could no longer place trust or confidence. We cannot accept that the Legislature in adopting § 15 of the PERA in 1965 meant to encumber the judicial process in such a manner.

We would affirm the Court of Appeals.

Coleman and Fitzgerald, JJ., concurred with Lindemer, J.

Williams, J.

(to affirm). The basic legal issue in this case is whether there is such a positive repugnancy between the provisions of the public employees relations act (PERA)¹ and the probation officer removal statute² that PERA repeals the probation officer removal statute by necessary implication. The factual question posing the legal question is whether there must be binding arbitration pursuant to the bargaining agreement between Recorder’s Court and its employees to review whether the court properly removed a probation officer following the procedures of the probation officer removal statute.

My Brother Levin’s opinion holds that the subsequent PERA supersedes the probation officer removal statute because of "the apparent legislative intent that the PERA be the governing law for public employee labor relations”, and the Recorder’s Court must proceed to arbitration. Rockwell v Crestwood School District Board of Education, 393 Mich 616, 629; 227 NW2d 736 (1975). My Brother Lindemer’s opinion, on the other hand, holds that a specific prior statute like the probation officer removal statute cannot be overruled by a general statute like PERA, and that the Recorder’s Court properly removed plaintiff Osborn and is not subject to review by arbitration. Imlay Twp School District v State Board of Education, 359 Mich 478, 485; 102 NW2d 720 (1960).

As indicated above this opinion reverts to the basic doctrine underlying the rules my brothers rely on, to wit, that there is no repeal by implication unless there is positive repugnancy between the later and earlier statutes. That is the way legislative intention is expressed. That is the foundation for the rule that normally a general statute does not repeal a specific one.

Examination of PERA under this rule fails to disclose any specific preemption in the field of employee removal or review by arbitration of such removal that would create a positive repugnancy and repeal by implication the probation officer removal statute. Supporting this finding is the consideration that legislative intention to delegate to a private person the power to remove or reinstate so sensitive a judicial official as a probation officer, because of constitutional implications, could not be presumed absent specific language to that effect.

I — Facts

To rehearse the facts in any detail would be redundant, as Justice Levin has fairly and adequately set them forth. Suffice it to say, the Recorder’s Court judges after notice and hearing and finding plaintiff probation officer "incompetent or * * * guilty of misconduct, neglect of duty or refusal to carry out the order of the court” recommended plaintiff probation officer to the Corrections Commission for removal pursuant to the probation officer removal statute. Plaintiff AFSCME filed a grievance requesting arbitration pursuant to their bargaining agreement. The Recorder’s Court relying on the probation officer removal statute declined to submit to arbitration. Plaintiffs thereupon unsuccessfully sought mandamus in the Court of Appeals.

II — Applicable Law

In the final analysis what this case involves is whether there is repeal by implication. In the ideal situation, the Legislature enacts new laws either covering fresh areas or specifically repealing former acts covered by the new legislation. The reality is, of course, that that is not what always happens. The courts therefore have evolved rules to construe old laws in light of new ones.

The most fundamental rule for the construction of two statutes covering the same subject generally is that they must be construed together to give meaning to both, if that is at all possible. Borden, Inc v Department of Treasury, 391 Mich 495, 523; 218 NW2d 667 (1974). The correlative of this is that there is a presumption against repeal by implication. 1A Sutherland Statutory Construction (Sands, 4th ed), § 23.10.

If it does not appear that two statutes can be construed together, the next question is does the later statute repeal the prior statute by implication. 21 Michigan Law & Practice, Statutes, §§ 63, 64. The general rule as to repeal by implication was well stated in Edwards v Auditor General, 161 Mich 639, 644-645; 126 NW 853 (1910), as follows:

"Repeals by implication are not favored. A statute can be repealed only by an express provision of a subsequent law, or by necessary implication through a positive repugnancy between provisions of the latter and former enactment, to such an extent that they cannot stand together, or be consistently reconciled.” (Emphasis added.)

The subsequent statute in that case required certain officials having in their control the bodies of unknown dead to ship them to the University of Michigan; the prior statute permitted the justice of the peace to hold inquest and bury the bodies of unknown dead. No repugnancy was found. This case also referred to the specific statute prevailing over the subsequent general one. See also Connors v Carp River Iron Co, 54 Mich 168, 171; 19 NW 938 (1884).

Ill — Application of Law to Case Facts

Turning then to analysis of whether the subsequent PERA repeals by implication the probation officer removal statute, we must bear three rules in mind. First, two statutes must be construed together if that is at all possible. Second, "[r]epeals by implication are not favored”. Third, "[a] statute can be repealed only * * * by necessary implication through a positive repugnancy * * * to such an extent that they cannot stand together”.

Our analysis permits PERA and the probation officer removal statute to stand together. The public employer, the Recorder’s Court, and the public employees, the probation officers, can bargain collectively about all subjects that the Legislature and the Constitution permit them to bargain on. They can even bargain about binding arbitration so long as they do not bargain about matters otherwise reserved by the Legislature or the Constitution, for example, they obviously couldn’t bargain or arbitrate whether probation officers could prescribe sentences.

By so construing the statutes together, we have followed the first two pertinent dictates of statutory construction. We have construed the two statutes together giving meaning to both. We have not favored repeal by implication. The third rule remains — are we required to repeal the earlier statute "by necessary implication through a positive repugnancy * * * to such an extent that they cannot stand together”.

We have already answered the latter part of the third rule by saying the statutes can stand together so we proceed to the first part, is there "a positive repugnancy”? Whether or not there is a positive repugnancy must be derived from examining the provisions of the two statutes.

The probation officer removal statute reads as follows:

"The Michigan corrections commission shall have the power to remove such officer or officers for incompetency, misconduct or failure to carry out the orders of the court, or neglect of any duty. Such removal may be made upon the certification of the judge or judges of the court under whom such probation officer acts, which certificate shall set forth that a full hearing has been had before said judge or judges and as a result thereof the court has determined that such probation officer is incompetent or has been guilty of misconduct, neglect of duty or refusal to carry out the order of the court. The Michigan corrections commission shall remove such officer or officers appointed by it upon the recommendation of the judge or judges of courts of cities having a population in excess of 250,000 inhabitants upon, and only upon, the filing of such certificate above mentioned.” MCLA 771.10; MSA 28.1140.

Noteworthy is that the statute is very explicit. It prescribes specifically who shall do exactly what to whom under well defined standards. It prescribed specifically that in a city of over 250,000 like Detroit the Corrections Commission shall remove upon specifically arrived at recommendation.

Since repeals by implication are not favored, any subsequent statute that would repeal so specific a legislative enactment must be very specific and clear cut to necessarily create a positive repugnancy. But with reference to the facts of this case, PERA is far from specific and clear cut. Quite the contrary.

The fact of the matter is that PERA does not directly mention removal procedures or binding arbitration at all. However, this Court held in Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674; 246 NW2d 831 (1976), "conditions of employment” about which a public employer must bargain included binding arbitration. MCLA 423.215; MSA 17.455(15).

The language of the most nearly pertinent section of PERA is as follows:

"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.” MCLA 423.215; MSA 17.455(15). (Emphasis added.)

The specificity of this language, or lack thereof, certainly does not create a positive repugnancy between it and the very specific language of the probation officer removal statute. Therefore we cannot find a repeal by necessary implication through positive repugnancy.

None of the cases cited in Justice Levin’s opinion establishes a positive repugnancy between PERA and the probation officer removal statute. We approvingly agree they indicate a strong legislative policy to put public employee relations generally under PERA, but they do not set forth a positive repugnancy as to removals or arbitration because it is perfectly possible to bargain about binding arbitration generally without bargaining about, or adopting an agreement relative to, probation officer removal, a subject on which the Legislature has specifically expressed its intentions.

In Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), this Court had to decide which of two agencies was the public employer under PERA, the Civil Service Commission or the Wayne County Supervisors, the operating agency that controlled and directed Wayne County public employees'. In short, there were no two ways about the decision, either the Civil Service Commission or the Board of Supervisors was the public employer, they couldn’t both be. There was the positive repugnancy our rule of construction requires. There certainly is not such a positive repugnancy in this case.

Judges of the 74th Judicial District v Bay County, 385 Mich 710; 190 NW2d 219 (1971), is pertinent only in that it held court employees were public employees of the court as a public employer.

Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674; 246 NW2d 831 (1976), held that binding arbitration was a subject public employers must bargain about, no more.

IV — Public Employees and Private Arbitration

Fair construction of the comparison of the two statutes involved is really sufficient to indicate there is no positive repugnancy permitting repeal by implication. However, there is another significant reason supporting this conclusion. It is a general rule of statutory construction that a construction which avoids a constitutional question will be preferred over one that does involve such a question. Attorney General ex rel Fuller v Parsell 100 Mich 170, 174; 58 NW 839 (1894).

Any construction permitting binding arbitration in this case raises the serious question whether the Legislature can constitutionally delegate to a private person, such as an arbitrator in this case, so sensitive a power as the reinstatement of a probation officer upon whose recommendation a sentencing judge so heavily depends, especially after a court has duly found that officer guilty of "incompetency, misconduct or failure to carry out the orders of the court, or neglect of any duty”. With such a potential constitutional problem, whether the Legislature can so act or not, it is highly improbable that the Legislature would legislate without very specifically setting forth the manner and standards under which the action should take place. We have seen that in PERA specific mention was made neither of how removals of any public employees should be consummated nor of binding arbitration about such removals. Consequently, under these circumstances we should not presume that the Legislature intended to repeal its earlier specific action.

General concern about private arbitrators arbitrating public employee questions was expressed in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229, 291, 314-315; 231 NW2d 226 (1975), in the Levin and Williams opinions.³ The Williams opinion set out four criteria as to the propriety of arbitration under the Michigan compulsory arbitration statute as follows:

1— Proximity to elective process.

2— Sufficiency of standards of delegation.

3— Tenure and public exposure.

4— Kind of power delegated.

Before examining these criteria it is recognized that the instant case differs from Dearborn in two respects. First, in Dearborn the arbitrators were appointed by specific statutory process, while in the instant case the arbitrators would be appointed pursuant to a bargaining agreement entered into as a result of PERA. Second, in Dear-born interest arbitration was involved whereas in the instant case grievance arbitration is involved. While these factors make the two cases different, they do not diminish the validity of the criteria established in Dearborn. Certainly both factors must be considered in weighing the four criteria.

In this case the arbitrator is a private person without public appointment and could be chosen by the parties with no special regard for the overall public interest. As a consequence, the proximity to the elective process and public responsibility is much more distant than in Dearborn where for default of the city to designate an arbitrator the Chairman of the Michigan Employment Relations Commission was authorized by statute to make the appointment and did.

On the other hand, grievance arbitration is usually considered less sensitive than interest arbitration as far as the general public interest is concerned.⁴ Certainly that would be true, for example, if the issue were whether an employee should receive a two-day suspension without pay or a reprimand. However, as in this case, whether an employee can be reinstated in a sensitive position where his findings of fact and recommendations are the almost exclusive basis for sentencing decision by a judge is a matter involving a very significant degree of public concern.

Reviewing then the four Dearborn criteria reflecting upon public responsibility, we have already discussed somewhat the first. The arbitrator here is a private person chosen by the court and its employees. There is no appointment by an elected public official or by a public official appointed by an elected public official who is not specifically interested in this case. There is therefore no apparent or necessary responsibility to the general public.

As to sufficiency of standards of delegation, there is no reference to binding arbitration in PERA. The right to binding arbitration can be properly implied, but the point is that PERA does not set forth any standards covering the manner in which arbitration shall be conducted. The public interest therefore must rest with the professionalism and conscience of the individual arbitrator.

As to tenure and public exposure, there is no indication that the tenure of the arbitrator is for more than the particular dispute. The likelihood that there would be any great public interest in the disposition of this or similar cases is not immediately evident. Consequently, the public hold on the arbitrator is not very strong.

Finally, as to the power delegated, that point has also been briefly discussed above. The power to arbitrate whether or not there should be a short suspension or something of that sort would probably involve no great public concern. On the other hand, the reinstatement of a public officer in a position as sensitive as a probation officer might very seriously affect a real public concern. Such concern was manifested, of course, in the enactment of the probation officer removal statute.

Weighing all these four factors together, it cannot be said much provision has been made to insure the public responsibility of the arbitrator. This is not to disparage the public conscience of any arbitrator, it is only to point out that there are no effective legislative safeguards to protect the public interest. We do not here decide whether binding arbitration under these circumstances is constitutional or not. That must wait for a later case where the matter is fully briefed and argued. The purpose for this consideration at this time is to determine whether the Legislature should be presumed to have raised the possibility of such a constitutional problem without using more specific language than appears in PERA. We do not believe such an assumption is proper and that statutory construction would require us to adopt a construction not raising such a constitutional problem.⁵

V — Conclusion

We agree with Justice Levin that the Legislature intended PERA to cover public employee relations generally. However, we believe we can construe PERA and the probation officer removal statute together so as to give meaning to both.

In doing so, we satisfy the first pertinent rule of statutory construction, namely to construe statutes together, if possible, as well as the second pertinent rule that repeals by implication are not favored. Furthermore, pursuant to the third pertinent rule that repeal by implication will not be considered absent positive repugnancy, we find that there is no positive repugnancy between the very specific provisions of the probation officer removal statute and the general or non-existent provisions of PERA on the same subject.

In addition, we find that the holding of non-repeal is buttressed by the consideration that it will not be presumed that the Legislature intends to provoke a constitutional problem especially without specific language to that effect and that plaintiffs’ construction of these statutes would raise the problem, whether the Legislature is delegating sensitive public power to a private person and without any controlling standards of public accountability.

With these considerations, we therefore hold (1) that PERA and the probation officer removal statute must be construed together (2) that there is no repeal by implication and (3) that review by binding arbitration of the decision to remove plaintiff probation officer by the Corrections Commission upon recommendation of the Recorder’s Court after notice and hearing pursuant to the probation officer removal statute is not in order.

The Court of Appeals is affirmed. No costs, a public question.

1 MCLA 423.201 et seq.; MSA 17.455(1) et seq.

2 MCLA 771.10; MSA 28.1140.

3 This was a non-majority opinion case. Justices Levin and the Chief Justice found the Michigan compulsory arbitration act unconstitutional. Justice Coleman found it constitutional. Justice Williams found it constitutional when the Chairman of MERC appoints the arbitrator.

4 Justice Levin has not spoken to his concern, if any, about grievance arbitration.

5 This opinion does not attempt to rule on constitutionality as it was not argued below. It does, however, attempt to call attention again to a matter that has inherent potential of seriously affecting the public interest so that such consideration shall be given the subject as the matter deserves.

Had this Court decided PERA controlled, the writer of this opinion would have remanded to the trial court so that the issue of public responsibility in arbitrating this particular matter would have been fully briefed and argued and so that a decision on the constitutional question could have been properly considered.