Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh
O pinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 17, 2001
MICHAEL LEE, BRYAN DUNCIL, MARY
DUNCIL on behalf of herself and
JOSEPH DUNCIL, BRYAN DUNCIL, KENNETH
DUNCIL, and JON DUNCIL, as their
Next Friend, and the class of all
others similarly situated,
Plaintiff-Appellees,
v No. 114700
THE MACOMB COUNTY BOARD OF
COMMISSIONERS, and the COUNTY OF
MACOMB,
Defendant-Appellants.
____________________________________
DENNIS D. WALKER, on behalf of
himself and DAWNELL J. WALKER and
MELANIE WALKER, their Next Friend,
and DWAYNE STEAGALL, ERNEST GROCE,
JERRY GRAY, PAUL ECKLEY, DUANE GORE,
KENNETH JONES, MORRIS BARTOLOTTA, and
the class of all others similarly
situated,
Plaintiffs-Appellees,
v No. 115259
THE WAYNE COUNTY BOARD OF
COMMISSIONERS and THE COUNTY
OF WAYNE,
Defendants-Appellants.
_____________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
At issue in these two cases coming to us from Macomb and
Wayne counties is whether these plaintiffs have standing to
pursue actions to compel their respective county board of
commissioners to levy a tax to establish a veterans’ relief
fund in accordance with the soldiers’ relief fund act, MCL
35.21 et seq. It is uncontested that none of the plaintiffs
actually had sought relief under the act. Because of this,
the counties asserted that these litigants had suffered no
injury and, accordingly, that plaintiffs (1) were without
standing to sue and (2) had failed to exhaust statutory
remedies. In Lee, the Macomb County case, the trial court
granted summary disposition for the county on those grounds.
In Walker, the Wayne County case, the trial court denied the
county’s motion for summary disposition, concluding that
plaintiffs had standing and were not required to exhaust
statutory remedies because they alleged a complete failure to
comply with the act. The Court of Appeals consolidated the
appeals and largely reversed in Lee and affirmed in Walker.
235 Mich App 323; 597 NW2d 545 (1999). It concluded that
plaintiffs had standing to sue to compel implementation of the
act and that mandamus was a proper remedy. We reverse.
Statutory Analysis
In these actions, plaintiffs seek to compel the
legislative branch of the county government, the board of
commissioners, to levy a tax to establish a veterans’ relief
fund pursuant to the soldiers’ relief fund act. MCL 35.21
provides in pertinent part:1
The county board of commissioners of each
county shall annually levy, a tax not exceeding
1/10 of a mill on each dollar, to be levied and
collected as provided by law, upon the taxable
property of each township and city, for their
respective counties, for the purpose of creating a
fund for the relief of honorably discharged
indigent members of the army, navy, air force,
marine corps, coast guard, and women's auxiliaries
of all wars or military expeditions in which the
United States of America has been, is, or may
hereafter be, a participant . . . and the indigent
spouses, minor children, and parents of each such
indigent or deceased member. . . . If any money in
the fund is not necessary for the purpose for which
it was raised, the money shall remain in the
treasury of the county as a soldiers' relief fund,
and shall be considered in raising future sums
therefor.
As can be seen, this section requires that the board of
commissioners create a soldiers’ relief fund by a tax levy.
It also, however, requires the commissioners to consider the
amount existing in the fund when determining the amount, if
1 This act was initially enacted in 1899 and amended in
1984 to update antiquated language.
any, of the annual levy for the fund.2
Having thus established the funding mechanism, the act
then continues by providing a procedure in MCL 35.23 for
initiating and determining the amount of relief to be granted.
This section states:
The supervisor of each township and ward in
each of the counties of this state, and where there
is no ward supervisor the aldermen of the several
wards of every incorporated city in this state,
shall, on or before the last Monday in September in
each year, make and place in the hands of the
soldiers' relief commission of the county, a list
of all the persons entitled to relief under the
provisions of this act, and the soldiers' relief
commission, on the first Monday in October in each
year, shall proceed to determine the amount
necessary for aid and relief to be granted such
persons under this act, which shall be then and
there recorded in the books to be kept by the
secretary of said soldiers' relief commission. The
commission may determine not only the sum to be
paid, but the manner of paying the same, and may
discontinue the payment of such relief in their
discretion. Appeal may be taken therefrom to the
circuit court of such county, by certiorari by
filing application therefor with the clerk within
fifteen days following the making of such decision.
The court shall hear the case de novo and its
decision shall be final.
What is established, then, is a scheme whereby it is
2 In response to the dissent, we note that, once the fund
is created, the act provides the commissioners with discretion
regarding the amount of the annual tax levy in light of any
amount existing in the fund. Moreover, at oral argument,
plaintiffs’ counsel conceded that the record did not establish
whether Macomb County had, at some time in the past, created
a fund by levying a tax in compliance with the act.
Presumably, the record is similarly unclear regarding whether
Wayne County, at some time in the past, created a fund by
levying a tax in compliance with the act.
anticipated that the township supervisor or ward aldermen will
annually prepare a list of persons eligible for relief and
provide this list to the soldiers’ relief commission.3 That
commission then, in its discretion, determines the amount of
relief, if any, to grant to the indigent, honorably discharged
veteran or dependent applicant. Moreover, the statute
provides that aggrieved applicants can appeal the commission’s
decision to the circuit court.
Facts and Proceedings
Here, without ever having sought relief under the act,
plaintiffs filed suit to compel Macomb and Wayne Counties to
levy the annual tax in order to create the fund of which the
act speaks. Further, they, and presumably others, will soon
seek damages for those years in which the counties allegedly
3 The statute requires the supervisor or alderman to
create such a list, but it does not specify the means for
identifying eligible persons. Clearly, the supervisor or
alderman can only place persons on this list if aware or made
aware that an eligible person is in need. The supervisor or
alderman can obviously act sua sponte and include on the list
any known eligible persons. However in order to fulfill the
duty to “make . . . a list of all the persons entitled to
relief under the provisions of this act,” he is also obligated
to add to the list any eligible person who asks to be included
on it. (Emphasis added.) This reading of the statute, rather
than one reposing veto power with the supervisor or alderman
regarding who will be included on the list, expands the
opportunities for eligible veterans who, for whatever reason,
have not been included on the list. We opt for this expansive
reading because this is a remedial statute and we are
obligated to read it liberally in favor of the indigent
veterans it is intended to benefit. See Chandler v Dowell
Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998).
5 failed to comply with the act.
Macomb County, in the Lee case, moved for summary
disposition, claiming, inter alia, lack of standing and
failure to exhaust administrative remedies. In support, it
provided the 1994 affidavit of its Department of Veterans
Affairs Director, which indicated that the department had,
through county budget appropriations, maintained a fund of
$1000 for veterans relief for several years and that no claims
for such relief had been filed for the past ten years. The
trial court granted Macomb County’s motion for summary
disposition, concluding that plaintiffs lacked standing and
failed to exhaust administrative remedies because they had not
requested relief from the local government.
Wayne County, in the Walker case, sought summary
disposition on similar grounds. It provided documentary
evidence indicating that, in 1994, the Wayne County Commission
approved an appropriation of $1,146,042 for Veterans’ Affairs
expenditures and that the Wayne County Soldiers Relief Program
had been operational since February 1995. In this case,
however, the trial court denied Wayne County’s motion for
summary disposition, concluding that plaintiffs had standing
because they were in the class intended to be benefitted by
the act and had been harmed by noncompliance with it and that
they were not required to exhaust administrative remedies to
challenge a wholesale failure to comply with the act.
These two cases were consolidated in the Court of
Appeals, which largely reversed in Lee and affirmed in
Walker.4 The Court of Appeals majority concluded that
plaintiffs had standing because they are “members of the class
for whose benefit the Act was enacted” and because they are
“detrimentally affected in a manner different from the public
generally.” 235 Mich App 332. The panel held that mandamus
was an appropriate remedy here because plaintiffs were seeking
compliance with the act, not the levy of a particular amount
or the grant of particular benefits. Id. at 333-334.
Finally, it concluded that plaintiffs’ actions could not be
dismissed on the basis of failure to exhaust statutory
remedies because they were alleging a wholesale failure to
implement and comply with the act. Id. at 335.
In dissent, former Justice John Fitzgerald, sitting by
assignment, disagreed with the majority regarding standing:
[P]laintiffs have not alleged any specific
injury as a result of defendants' failure to
establish a mechanism for evaluation of a claim for
benefits or of defendants' underfunding of their
respective veterans' relief funds. [Id. at 337.]
Explaining further he said:
[P]laintiffs have not alleged a distinct and
palpable injury resulting from defendants' failure
to fully comply with the statute, and consequently
their claims cannot be differentiated from those of
4 The Court of Appeals ruled that government immunity
precluded plaintiffs’ negligence and gross negligence claims
in both cases.
any other citizen. As a prudential matter, courts
must exercise their jurisdiction to address
tangible, personal, threatened interests, not
generalized grievances. I am not persuaded that
plaintiffs, as private citizens whose individual
rights under the statute have not been abridged,
have standing . . . . [Id. (citations omitted).]
Regarding mandamus, he stated that it was inappropriate,
assuming standing existed, because plaintiffs were “seeking to
compel defendants’ exercise of discretion in a particular
manner” that is beyond the scope of mandamus Id. at 338-339.
This Court granted leave to appeal. 462 Mich 912 (2000).
Standard of Review
Whether a party has standing is a question of law. This
Court reviews questions of law de novo. Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 595; 614 NW2d 88
(2000).
Standing
It is important, initially, to recognize that in
Michigan, as in the federal system, standing is of great
consequence so that neglect of it would imperil the
constitutional architecture whereby governmental powers are
divided between the three branches of government.
Standing, as a requirement to enter the courts, is a
venerable doctrine in the federal system that derives from US
Const, art III, § 1, which confers only “judicial power” on
the courts and from US Const, art III, § 2's limitation of the
judicial power to “Cases” and “Controversies.”5 In several
recent cases, the United States Supreme Court has discussed
the close relationship between standing and separation of
powers. In Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135
L Ed 2d 606 (1996), Justice Scalia, writing for the majority,
said:
[T]he doctrine of standing [is] a
constitutional principle that prevents courts of
law from undertaking tasks assigned to the
political branches. It is the role of courts to
provide relief to claimants, in individual or class
actions, who have suffered, or will imminently
suffer, actual harm; it is not the role of courts,
but that of the political branches, to shape the
institutions of government in such fashion as to
comply with the laws and the Constitution.
[Citations omitted.]
Lewis was foreshadowed in Lujan v Defenders of Wildlife,
504 US 555, 559-560; 112 S Ct 2130; 119 L Ed 2d 351 (1992),
5 The first clause of US Const, art III, § 2 states:
The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made,
or which shall be made, under their Authority;—to
all Cases affecting Ambassadors, other public
Ministers and Consuls;—to all Cases of admiralty
and maritime Jurisdiction;—to Controversies to
which the United States shall be a Party;—to
Controversies between two or more States;—between a
State and Citizens of another State;—between
Citizens of different States;—between Citizens of
the same State claiming Lands under Grants of
different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or
Subjects.
where Justice Scalia, again speaking for the Court, explained:
[T]he Constitution's central mechanism of
separation of powers depends largely upon common
understanding of what activities are appropriate to
legislatures, to executives, and to courts. . . .
One of those landmarks, setting apart the "Cases"
and "Controversies" that are of the justiciable
sort referred to in Article III—"serv[ing] to
identify those disputes which are appropriately
resolved through the judicial process,"—is the
doctrine of standing. Though some of its elements
express merely prudential considerations that are
part of judicial self-government, the core
component of standing is an essential and
unchanging part of the case-or-controversy
requirement of Article III. [Citations omitted.]
In Plaut v Spendthrift Farm, Inc, 514 US 211, 219-225;
115 S Ct 1447; 131 L Ed 2d 328 (1995), Justice Scalia, in
another majority opinion, provided a detailed analysis of the
concern with preserving the separation of powers between the
legislative and judicial branches, that traced its history
back to the framers of the U.S. Constitution.
Finally, Chief Justice Rehnquist even more dramatically
stated the case in his majority opinion in Raines v Byrd, 521
US 811, 818, 820; 117 S Ct 2312; 138 L Ed 2d 849 (1997):
“No principle is more fundamental to the
judiciary's proper role in our system of government
than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.”
* * *
“[T]he law of Art III standing is built on a
single basic idea—the idea of separation of
powers.”
In Michigan, standing has developed on a track parallel
to the federal doctrine, albeit by way of an additional
constitutional underpinning. In addition to Const 1963, art
6, § 1, which vests the state “judicial power” in the courts,
Const 1963, art 3, § 2 expressly directs that the powers of
the legislature, the executive, and the judiciary be
separate.6 Concern with maintaining the separation of powers,
as in the federal courts, has caused this Court over the years
to be vigilant in preventing the judiciary from usurping the
powers of the political branches. Early on, the great
constitutional scholar Justice Thomas M. Cooley discussed the
concept of separation of powers in the context of declining to
issue a mandamus against the Governor in Sutherland v
Governor, 29 Mich 320, 324 (1874):
Our government is one whose powers have been
carefully apportioned between three distinct
departments, which emanate alike from the people,
have their powers alike limited and defined by the
constitution, are of equal dignity, and within
their respective spheres of action equally
independent. One makes the laws, another applies
the laws in contested cases, while the third must
see that the laws are executed. This division is
accepted as a necessity in all free governments,
and the very apportionment of power to one
department is understood to be a prohibition of its
The powers of government are divided into
three branches: legislative, executive and
judicial. No person exercising the powers of one
branch shall exercise powers properly belonging to
another branch except as expressly provided in this
constitution.
exercise by either of the others. The executive is
forbidden to exercise judicial power by the same
implication which forbids the courts to take upon
themselves his duties.
This position followed from the even earlier iteration of the
standing doctrine by Justice Campbell in 1859 when, speaking
for this Court, he said:
By the judicial power of courts is generally
understood the power to hear and determine
controversies between adverse parties, and
questions in litigation. [Daniels v People, 6 Mich
381, 388 (1859)(emphasis added).]
Later, in Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884),
this Court explained:
The judicial power referred to is the
authority to hear and decide controversies, and to
make binding orders and judgments respecting them.
[Emphasis added.]
More recently, Johnson v Kramer Bros Freight Lines, Inc, 357
Mich 254, 258; 98 NW2d 586 (1959), reaffirmed this concept by
quoting this portion of Risser.
In fleshing out the tests that a litigant must meet to
establish standing, the most recent majority iteration from
this Court7 is found in House Speaker v Governor, 441 Mich
547, 554; 495 NW2d 539 (1993):
Standing is a legal term used to denote the
existence of a party's interest in the outcome of
litigation that will ensure sincere and vigorous
advocacy. However, evidence that a party will
7 This Court addressed standing in Detroit Fire Fighters
Ass’n v Detroit, 449 Mich 629; 537 NW2d 436 (1995), but a
majority did not agree on a standing test.
engage in full and vigorous advocacy, by itself, is
insufficient to establish standing. Standing
requires a demonstration that the plaintiff's
substantial interest will be detrimentally affected
in a manner different from the citizenry at large.
House Speaker provided a general description of standing and
articulated the requirement of an interest distinct from that
of the public. However, further explication of the essential
elements of standing has proven difficult as demonstrated by
this Court’s experience in attempting to fashion a clear
majority in Detroit Fire Fighters Ass’n v Detroit, 449 Mich
629; 537 NW2d 436 (1995). In that case, the separate opinions
suggested different inquiries as being central to determining
standing. Some focused on whether the plaintiff could
establish an injury distinct from that of the public, others
on whether the plaintiffs were in the zone of interest the
statutory or constitutional provision at issue is designed to
regulate. Perhaps the clearest template was set forward by
Justice Cavanagh who, along with Justice Boyle, advocated
adopting the United States Supreme Court’s Lujan test. Lujan
held:
Over the years, our cases have established
that the irreducible constitutional minimum of
standing contains three elements. First, the
plaintiff must have suffered an "injury in fact"—an
invasion of a legally protected interest which is
(a) concrete and particularized, and (b) "actual or
imminent, not 'conjectural' or 'hypothetical.' "
Second, there must be a causal connection between
the injury and the conduct complained of—the injury
has to be "fairly . . . trace[able] to the
challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some
third party not before the court." Third, it must
be "likely," as opposed to merely "speculative,"
that the injury will be "redressed by a favorable
decision."
The party invoking . . . jurisdiction bears
the burden of establishing these elements. [504 US
560-561 (citations omitted).]
In our view, the Lujan test has the virtues of articulating
clear criteria and of establishing the burden of demonstrating
these elements. Moreover, its three elements appear to us to
be fundamental to standing; the United States Supreme Court
described them as establishing the “irreducible constitutional
minimum” of standing. We agree. Accordingly, we now join
Justice Cavanagh’s view and adopt the Lujan test, which should
be seen as supplementing the holding in House Speaker, as well
as this Court’s earlier standing jurisprudence, e.g., Daniels
and Risser, supra.
Applying this test in the present case, it is clear that
plaintiffs lack standing. In Lujan terms, they have not yet
suffered any “injury in fact.” See 504 US 560. Specifically,
they have shown no “invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 560.
Both groups of plaintiffs have alleged and argued only that
they “should receive” and “should have received, the benefit
of the property tax levy required by MCL 35.21,” and that the
failure to levy and collect the tax set forth in the soldiers’
relief fund act “has caused, and continues to cause,
plaintiffs great harm and damage.” Even if accepted as true,
these allegations cannot satisfy the Lujan injury in fact
requirement because it is not readily apparent how the
collection of a tax pursuant to the act would have benefitted
plaintiffs in a concrete and particularized manner. MCL 35.23
provides that the soldiers’ relief commission is to determine
the amount and manner of any relief thereunder and that it may
discontinue such relief in its discretion. Thus, the amount
of relief, if any, that plaintiffs might have received under
this act is solely within the discretion of the commission.8
“[G]reat harm and damage” is not concrete or particularized.
Plaintiffs also fail to explain, with particularity, what is
meant by “the benefit of the property tax levy required by MCL
8 The dissent argues that it is “inescapable” that relief
under that act would have benefitted the indigent plaintiffs
in a concrete and particularized manner. Slip op, p 8. We
surmise that the idea is that any claimant would be better off
with more money. Yet this verity misses the point. The issue
is whether plaintiffs can demonstrate a concrete and
particularized injury arising out of the alleged failure of
the counties to levy a tax in accordance with the act.
Moreover, even if we jump ahead, as the dissent would, to the
point where fund distribution to plaintiffs was at issue, it
is not “inescapable” that plaintiffs would receive funds
because the commission would likely exercise its discretion to
avoid duplicating other government and private social welfare
programs. Thus, the commission could, even if plaintiffs were
indigent, decide not to award funds to them.
Thus, for all these reasons, what might be received, if
anything, far from being concrete and particularized, is
simply uncertain.
35.21.” At most, we can only speculate how the existence of
a fund would have helped plaintiffs. Accordingly, plaintiffs
lack standing to pursue the present actions.
In the absence of standing, we will not address
plaintiffs’ substantive claims.
Conclusion
Plaintiffs do not have standing to bring the present
actions. We accordingly reverse the Court of Appeals
determination that they have standing and remand these actions
to the respective circuit courts for entry of orders
dismissing plaintiffs’ actions on the basis of lack of
standing.
CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with
S T A T E O F M I C H I G A N
SUPREME COURT
WEAVER, J. (concurring).
I concur in the majority’s decision to reverse the
judgment of the Court of Appeals. I write separately because
I disagree with the majority’s decision to adopt the Lujan1
standing requirements. I would find that the plaintiffs have
standing. However, I agree with the decision to reverse;
because the relief requested is a discretionary act, I would
find that mandamus is not an appropriate remedy in this case.
Although I would hold that no relief can be granted in
this case, I am still cognizant of the great debt that our
society owes to its veterans. The soldiers’ relief act was
first enacted in 1899, “to provide relief outside of the
soldiers’ home for honorably discharged indigent soldiers,
sailors and marines, and the indigent wives, widows and minor
children of such indigent or deceased soldiers, sailors and
marines . . . .” 1899 PA 214. I think it is appropriate to
consider the last paragraph of the report on the Spanish-
American War included in the Michigan Legislative Manual and
Official Directory for the years 1899-1900, p 693:
The forces that went into the war with Spain,
from Michigan, were actuated by the highest
motives. They came from every employment and walk
of life, yet none entered that service without a
sacrifice. All left peaceful homes with
comfortable surroundings and sure sources of income
to risk their lives in battle or in camp in
1 Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct
2130; 119 L Ed 2d 351 (1992).
response to the call of duty and patriotism. Some
were killed in battle, others died of diseases
incident to life in camp under new and untried
conditions. Some came home comparatively unharmed,
while others, and very many others, came bringing
with them the seeds of disease and infirmities from
which they will always suffer. There is but one
proposition to make. The people of Michigan in
common with the people of this great nation owe a
debt of gratitude and love to those who in any way
represented them in the glorious contest for
humanity so happily and successfully ended by our
treaty of peace with Spain, and we should not
forget now or hereafter any of the obligations
imposed on us by this debt.
I
Unlike constitutional cases in federal courts, the
Michigan standing requirements have been based on prudential,
rather than constitutional, concerns. See, generally, House
Speaker v State Administrative Bd, 441 Mich 547, 559, n 20;
495 NW2d 539 (1993), and Justice R ILEY ’s dissent in Detroit
Fire Fighters Ass’n v Detroit 449 Mich 629; 537 NW2d 436
(1995). Both this Court and the United States Supreme Court
have recognized that we are not required to comply with the
federal rules regarding standing.2 I believe that adopting
2 In House Speaker we stated that “this Court is not bound
to follow federal cases regarding standing,” pointing out that
“[o]ne notable distinction between federal and state standing
analysis is the power of this Court to issue advisory
opinions. Const 1963, art 3, §8. Under Article III of the
federal constitution, federal courts may issue opinions only
where there is an actual case or controversy.” Id., p 559,
including n 20. Justice Kennedy, writing for the Court in
ASARCO Inc v Kadish, 490 US 605, 617; 109 S Ct 2037; 104 L Ed
(continued...)
the federal standing test as set forth in Lujan v Defenders of
Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992),
is unnecessary; therefore I decline to supplement the current
standing doctrine of this Court.
Applying Michigan’s traditional rules of standing, I
would find that the plaintiffs have standing to bring the
present action. In Michigan, it is well settled that all
disgruntled citizens do not automatically have standing to sue
a public body. In House Speaker, supra at 554, we said:
existence of a party’s interest in the outcome of
engage in full and vigorous advocacy, by itself,
is insufficient to establish standing. Standing
requires a demonstration that the plaintiff’s
The usual rule has been that a private citizen has no standing
to vindicate a public wrong or enforce a public right where
that citizen has not been hurt in any manner different than
the citizenry at large. Waterford Sch Dist v State Bd of Ed,
98 Mich App 658, 662; 296 NW2d 328 (1980).
2 (...continued)
2d 696 (1989), acknowledged:
We have recognized often that the constraints
of Article III do not apply to state courts, and
accordingly the state courts are not bound by the
limitations of a case or controversy or other
federal rules of justiciability . . . .
However, while a private suit is generally precluded when
a violation of a public duty is claimed, a private action can
be maintained if the public duty also was intended to benefit
private individuals. Taylor v Lake Shore & M S R Co, 45 Mich
74, 77; 7 NW 728 (1881). Justice C OOLEY , speaking for the
Court, explained that “[t]he nature of the duty and the
benefits to be accomplished through its performance must
generally determine whether it is a duty to the public in part
or exclusively, or whether individuals may claim that it is a
duty imposed wholly or in part for their especial benefit.”
Id. See also Gardner v Wood, 429 Mich 290; 414 NW2d 706
(1987).
The plain language of the soldiers’ relief fund act3
unequivocally supports the notion that the statute was enacted
solely to benefit citizens in the same class as the
plaintiffs, i.e., honorably discharged, indigent veterans.
Clearly, the plaintiffs possess an interest in the soldiers’
relief fund that is “different from the public at large.”
Moreover, the relief sought does indeed more directly and
1/10 of a mill on each dollar . . . for the purpose
of creating a fund for the relief of honorably
discharged indigent members of the army, navy, air
force, marine corps, coast guard, and women’s
auxiliaries of all wars or military
expeditions . . . . See MCL 35.21.
tangibly benefit the plaintiffs than it does the public at
large. In this case, the plaintiffs made a proper showing
that they were injured in a manner distinct from the citizenry
at large. Therefore, I would find that the plaintiffs have
standing to pursue the instant action.
II
Plaintiffs ask that the defendant counties be ordered to
begin assessing taxes to maintain their soldiers’ relief
funds. However, this particular duty, which is covered by MCL
35.21, is discretionary, and therefore is not a proper subject
for mandamus. Because I would find that mandamus is not an
appropriate remedy in this case, I agree with the majority’s
result.
It is well settled that an order of mandamus will be
issued only if the plaintiffs have a clear legal right to the
performance of the specific duty sought to be compelled and
the defendant has a clear legal duty to perform the same.
State Bd of Ed v Houghton Schs, 430 Mich 658, 666; 425 NW2d 80
(1988). The act sought to be compelled must not be
discretionary. It must be of a ministerial nature, and it
must be prescribed by law with such precision and certainty as
to leave nothing to the exercise of discretion or judgment.
If any reasonable doubts exist regarding the question of
discretion or want of discretion, the courts will hesitate to
interfere. See In re MCI Telecommunications, 460 Mich 396;
596 NW2d 164 (1999), Oakland Schs Bd of Ed v Sup’t of Pub
Instruction, 401 Mich 37; 257 NW2d 73 (1977) and Taylor v
Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955).
Here, the county board of commissioners is given the
authority and the discretion to determine the amount of the
tax to be levied; the only limit it is given is that it not
exceed 1/10 of a mill. The first sentence of MCL 35.21
provides:
The county board of commissioner of each
indigent . . . .
Further, the last sentence of MCL 35.21 states
If any money in the fund is not necessary for
the purpose for which it was raised, the money
shall remain in the treasury of the county as a
soldiers' relief fund, and shall be considered in
raising future sums therefor.
Additionally, the soldiers’ relief commission is required to
make an annual report of the money on hand, the money it is
expending, and how much it believes will be needed for the
next year. Therefore the relief requested by the plaintiffs,
that the defendant counties be ordered to begin assessing
taxes under the statute, is a discretionary act, and mandamus
is not an appropriate remedy.
There is no specific relief the Court could provide, as
we cannot require the county to assess a specific amount.
Accordingly, I concur with the majority opinion’s result
reversing the judgment of the Court of Appeals.
JOSEPH DUNCIL, BRYAN DUNCIL,
KENNETH DUNCIL, and JON DUNCIL,
as their Next Friend, and the class
of all others similarly situated,
___________________________________
KENNETH JONES, MORRIS BARTOLOTTA,
and the class of all others similarly
situated.
COMMISSIONERS and the COUNTY OF
WAYNE,
KELLY, J. (dissenting).
I disagree with the majority's reversal of the Court of
Appeals decision. I believe plaintiffs have standing to bring
the current actions and mandamus has been appropriately
sought. I would affirm the Court of Appeals decision that
reversed summary disposition in favor of Macomb County and
affirmed denial of Wayne County's motion for summary
disposition.
I. THE STATUTES
Plaintiffs alleged in their complaints that defendants
violated the soldiers' relief fund act1 by failing to comply
with their duty to levy and collect a tax and perform other
obligations. Section 1 of the act creates a relief fund by
mandating an annual tax levy and payment of the moneys
collected to the county treasurer. MCL 35.21.
The method for disbursing moneys from the fund appears at
§ 3 of the act. This section mandates the compilation of a
list of persons entitled to relief under the act and a
1 MCL 35.21 et seq.
determination of the amount of relief to be granted to such
persons. MCL 35.23.2
In summary, a relief fund was to be established and an
annual compilation of the names of persons entitled to monies
from the fund was to be made. Many of the actions of the
county board of commissioners, the township supervisors and
the soldiers' relief commission that are described in the
statute are mandatory, as evidenced by use of the word
"shall."
Under the act, the county board of commissioners has a
duty to levy a tax annually. The supervisor of each township
and ward is obligated to make a list of persons eligible for
relief and give that list to the soldiers' relief commission.
The soldiers' relief commission must determine the amount of
money to be distributed to the persons on the list. The
county board of commissioners is obligated to pay the money
from the taxes to the county treasurer, who disburses the
money at the order of the soldiers' relief commission.
The majority focuses on the discretion that the act gives
the soldiers' relief commission to set the amount to be
distributed. However, plaintiffs do not allege that the
2 Pursuant to MCL 35.622, the soldiers' relief commission
was declared inoperative and its duties and powers transferred
to the county department of veterans' affairs. This opinion
will continue to refer to the soldiers' relief commission for
the sake of consistency.
soldiers' relief commission failed to comply with the act, nor
do they request money from it. Rather, plaintiffs seek to
compel the creation of a relief fund through the levy and
collection of an annual tax. The majority's reliance on the
discretion of the soldiers' relief commission ignores the fact
that the act gives no discretion whatsoever regarding whether
taxes are levied and a fund created. It mandates these acts
and directs the board of commissioners to accomplish them.
In the cases before us, plaintiffs claim that the county
boards of commissioners failed to comply with the act and
perform their nondiscretionary duties. Plaintiffs alleged in
their complaints that the county boards of commissioners had
not at any time levied a tax for the soldiers' relief fund.3
This failure to comply with the nondiscretionary obligations
3 It appears that the allegation regarding the Macomb
County Board of Commissioners may have been overstated.
Plaintiffs' counsel conceded during oral argument that the
record does not establish whether a fund was created in Macomb
County at sometime in the past and later eliminated.
Nevertheless, it must be remembered that these cases challenge
rulings made on motions for summary disposition brought under
MCR 2.116(C)(8). In ruling on these motions, only the
pleadings are considered. Maiden v Rozwood, 461 Mich 109,
119-120; 597 NW2d 817 (1999). Therefore, the concession is
not relevant to the resolution of this appeal.
Moreover, plaintiffs' complaints alleged ongoing
violations of the act. Whether a fund went into and out of
existence during the last century has no bearing on the
allegation that the Macomb County Board of Commissioners
failed to comply with the act at the time plaintiffs filed
their complaint.
of the act is the basis of plaintiffs' claims. Hence, the
majority's focus on the discretionary nature of the soldiers'
relief commission's duties camouflages the relevant fact: no
discretion exists that permits the county boards of
commissioners not to levy taxes for a soldiers' relief fund.4
II. STANDING
The trial court decisions in these matters were made on
motions for summary disposition and are reviewed de novo.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In
both cases, defendants challenged plaintiffs' standing under
MCR 2.116(C)(8). Such motions test the legal sufficiency of
the complaint, and, when ruling on them, the court may
consider only the pleadings. A trial judge may grant summary
disposition where the claims alleged are "so clearly
unenforceable as a matter of law that no factual development
could possibly justify recovery." Id. at 119.
The majority has concluded that summary disposition was
properly granted to Macomb County and improperly denied to
Wayne County. It adopts the test for standing articulated in
Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119
4 As noted by the majority and the concurrence, the act
gives the county boards of commissioners discretion in
determining the amount of the annual tax levy. However, this
fact does not in any way undermine plaintiffs' claims. As
evidenced by the word "shall," there is no discretion
regarding whether to levy an annual tax.
L Ed 2d 351 (1992). It then finds that plaintiffs failed to
establish standing under the test.
While I agree with the majority's adoption of the Lujan
test, I cannot agree that plaintiffs lack standing. That
conclusion ignores the nature of plaintiffs' claims.
Plaintiffs did not appeal from the denial of benefits under
the act. Instead, they sought to compel defendants to comply
with the act. That the amount of relief "is solely within the
discretion of the commission" is irrelevant to a determination
of the injury plaintiffs sustained from defendants' failure to
establish a relief fund in compliance with the act.
To withstand summary disposition on the basis of
standing, plaintiffs must plead that they suffered an injury
in fact through defendants' failure to comply with the
mandates of the soldiers' relief fund act. They have done so.
They have alleged that they are members of the class of
persons for whose benefit the fund was intended. They have
alleged that defendants failed to (1) levy a tax to establish
the relief fund, and (2) pay the collected moneys to the
county treasurer, both of which were for the benefit and
relief of plaintiffs. Plaintiffs have asserted that, because
defendants failed to comply with the act and establish the
fund, plaintiffs could not apply for or receive benefits to
which the act entitled them.
Because plaintiffs have alleged failure to establish a
relief fund and denial of the opportunity to apply for or
receive its benefits, they have sufficiently asserted an
injury in fact. There is no need for them to allege precisely
how the fund would have helped them. Had it been established,
plaintiffs have alleged that they would have applied for
financial assistance.
It is inescapable that the creation of a fund and the
opportunity for indigents to receive its financial assistance
would have benefitted plaintiffs in a concrete and
particularized manner. By definition, to be indigent is to be
"needy and poor, or one who has not sufficient property to
furnish him a living nor anyone able to support him to whom he
is entitled to look for support." Black's Law Dictionary (6th
ed). Through their assertions, plaintiffs have sufficiently
alleged "specific, concrete facts demonstrating that the
challenged practices harmed [them], and that [they] personally
would benefit in a tangible way from the court's
intervention." Warth v Seldin, 422 US 490, 508; 95 S Ct 2197;
45 L Ed 2d 343 (1975).
The majority determines that plaintiffs' claims are
"uncertain" because plaintiffs do not allege a likelihood that
the soldiers' relief commission would have granted funds to
them. Under this test, no plaintiffs could ever have standing
to contest defendants' failure to establish a relief fund. No
plaintiff could know how a soldiers' relief commission would
have exercised its discretion. If plaintiffs' had sought
relief within the discretion of the soldiers' relief
commission, what could they be required to allege to defeat a
motion for summary disposition under MCR 2.116(C)(8)? I
submit that it is only that, under a reasonable exercise of
discretion, the soldiers' relief commission would have granted
them relief. Plaintiffs in these cases made that showing by
alleging their eligibility, as veterans and as indigents.
However, that the amount of relief distributed was solely
within the discretion of the soldiers' relief commissions is
in no way related to whether plaintiffs suffered an injury in
fact. Since plaintiffs alleged injury from defendants'
failure to establish funds in accordance with the act, the
issue of discretion in administering the funds is irrelevant.
Plaintiffs also adequately pleaded facts that established
the second element of the Lujan test. The causal connection
between their alleged injuries and defendants' alleged conduct
or failure to act is illustrated in the reasoning above. If
defendants had complied with the requirements of the act,
plaintiffs have asserted that they would have applied for
benefits. There is no indication that the failure to comply
with the provisions of the act was the result of the
independent action of a third party.
Finally, plaintiffs have pleaded facts sufficient to
fulfill the third element of the Lujan test. They seek to
compel defendants' full compliance with the soldiers' relief
fund act. On the basis of the pleadings, plaintiffs have
alleged sufficient facts to establish that their injuries
would be redressed if these cases were returned for further
proceedings.
For these reasons, I would conclude that plaintiffs have
standing under the test in Lujan.
III. MANDAMUS
Mandamus is an extraordinary remedy that cannot be
invoked to compel discretionary actions. Teasel v Dep't of
Mental Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984).
However, an order of mandamus can be issued where "a body or
an officer [is] charged with a duty to take action in the
matter, notwithstanding the fact that the execution of that
duty may involve some measure of discretion." Id. at 410.
Therefore, mandamus can compel a body or officer to
exercise discretion, but cannot compel the manner in which the
discretion is exercised. Id. To issue an order of mandamus,
a defendant must have a clear legal duty and a plaintiff must
have a clear legal right to have the duty performed. Toan v
McGinn, 271 Mich 28, 33; 260 NW 108 (1935).
The relevant parts of the soldiers' relief fund act are
phrased in terms of clear legal duties that are applicable to
defendants. Under the act, the county board of commissioners
is charged with the duty of levying taxes on an annual basis.
It is the exercise of duty that plaintiffs seek to compel, a
proper purpose for the issuance of an order of mandamus.
The act also imposes a legal duty on defendants to create
a fund for the relief of honorably discharged indigent
veterans and their indigent spouses, minor children, and
parents. It establishes a clear legal right to relief for
certain persons, including the class that plaintiffs seek to
represent. Whether persons eligible under the act receive
relief is dependent on compliance by defendants in
establishing a relief fund. Defendants have clear legal
duties and plaintiffs have a clear legal right to have
defendants perform their duties. Mandamus is appropriately
sought.
IV. CONCLUSION
The soldiers' relief fund act, however arcane, is valid
and binding law. The Legislature could have chosen to repeal
it at any time during the last century, but did not do so.
Moreover, it is apparent from the fact that the Legislature
amended the act in 1984 that it made a conscious decision not
to repeal it.
The majority's reliance on that portion of the act giving
the soldiers' relief commission discretion in granting relief
ignores the nature of plaintiffs' claims. Plaintiffs did not
contend that the soldiers' relief commission failed to comply
with the act. Nor did plaintiffs seek relief within the
discretion of that commission. Therefore, the fact that the
amount of relief "is solely within the discretion" of the
soldiers' relief commission, as the majority points out, is
irrelevant to the claims presented here. What plaintiffs seek
is to compel the county boards of commissioners to comply with
their mandatory obligation to annually levy taxes and to
create relief funds.
As noted by the majority, the soldiers' relief fund act
is remedial and should be read liberally in favor of
plaintiffs, its intended beneficiaries. See Chandler v Dowell
Plaintiffs alleged that they suffered an injury in fact
through defendants' failure to establish relief funds and
denial of the opportunity to apply for or receive benefits
under the act. These claims are not so unenforceable as a
matter of law that no factual basis could possibly justify
recovery.
Plaintiffs have satisfied the criteria under the Lujan
test, establishing standing. The soldiers' relief fund act
charges defendants with the duty to take action in plaintiffs'
interest. Hence, the Court of Appeals correctly determined
that plaintiffs had standing to bring suit and that mandamus
was a proper remedy. Accordingly, I would affirm the decision
of the Court of Appeals.
CAVANAGH , J., concurred with KELLY , J.