House Speaker v. State Administrative Board

495 N.W.2d 539, 441 Mich. 547

• Court: Michigan Supreme Court
• Decided: January 15, 1993
• Docket: 92072, (Calendar No. 8)
• Status: Published

Opinions

Griffin, J.

This case presents a challenge by four members of the State Legislature to the authority of the State Administrative Board under § 3 of 1921 PA 2, as amended,¹ to transfer appropriated funds from one program to another within a department of state government. After finding that the legislator plaintiffs have standing to bring this action, the Court of Appeals ruled that the intradepartmental transfer in question was invalid on the ground that the statutory authority relied upon by the board had been impliedly repealed by subsequent legislative acts. While we agree that at least one of the plaintiffs has standing, we disagree that the State Administrative Board’s transfer authority was repealed by implication.

i

In 1921, in an effort to promote the efficiency of state government, the Legislature created the State Administrative Board.² Currently, the board is composed of six officials.³ Four are elected: the Governor, the Lieutenant Governor, the Attorney General, and the Secretary of State.⁴ The other two, the Superintendent of Public Instruction and the State Treasurer, are appointed.⁵

The State Administrative Board act defines the powers and duties of the board. Section 3 of the act confers upon the board "general supervisory-control over the functions and activities of all administrative departments ... of the state.” Initially, § 6 specifically granted the board control over the system of state accounting. In connection with the performance of its duties, the board exercised authority to transfer appropriated funds within and between departments. In 1931, through an amendment of the act, the Legislature imposed limits upon the board’s transfer authority. This legislation precluded the board from transferring funds between departments; however, the amendatory language added to both § 3 and § 6 specifically reserved to the board the authority to transfer funds "within the appropriation for the particular department.”⁶ Subsequently, the board’s control over the system of state accounting was withdrawn and delegated to other state officials.⁷ However, the board’s supervisory role over state departments continues.

This lawsuit arose from an attempt by the board in May 1991 to effect certain transfers of funds within departments pursuant to the authority set forth in § 3. This attempt followed efforts to deal in other ways with a projected fiscal year 1990-91 deficit of $536 million that confronted the state on January 1, 1991, when Governor Engler took office.

For example, on January 16, 1991, acting under the authority of Const 1963, art 5, § 20 and § 391 of the Management and Budget Act,⁸ the Governor submitted for approval by the Senate and House Appropriations Committees a comprehensive proposal that would have reduced state expenditures by $257 million.⁹ This proposal was approved by the Senate committee; however, it was rejected by the House committee.

Shortly thereafter, on February 22, 1991, a supplemental appropriations bill passed by the Legislature was signed by the Governor with significant line-item vetoes, which resulted in a reduction of $23.9 million in general purpose appropriations.¹⁰ However, despite negotiations between executive officials and legislative leaders, the budget crisis persisted and grew more serious in the absence of any comprehensive agreement between the two branches.¹¹

In an effort to deal with one phase of the problem, Budget Director Patricia Woodworth in February and March sent three requests to the Senate and House Appropriations Committees,¹² seeking approval for intradepartmental transfers of funds in accordance with § 393(2) of the Management and Budget Act. When, by May 1991, the House Appropriations Committee had taken no action on the requests, Governor Engler called a special meeting of the State Administrative Board for May 9, 1991. Acting under § 3, the board then adopted eleven resolutions providing for the transfer of funds within various departments, including the one resolution still at issue, which would transfer $190,000 within the Department of Natural Resources from the "Clean Michigan Fund” to certain land and water management accounts.¹³

The next day, plaintiffs commenced this action. At the time, plaintiff Lewis Dodak was the Speaker of the House of Representatives, plaintiff Dominic J. Jacobetti was the Chair of the House Appropriations Committee, plaintiff Arthur Miller was the Minority Leader of the Senate, and David S. Holmes, Jr., was the Vice-Chair of the Senate Appropriations Committee. Their suit against the board, the Governor, and several other executive branch officials had not been authorized by either House; plaintiffs brought their action as individual members of the Legislature.

In their amended complaint, plaintiffs maintain that the transfer authority set forth in § 3 had been expressly and impliedly repealed by subsequent enactments, and they claim that § 3 is unconstitutional.¹⁴ As relief, plaintiffs seek a permanent injunction prohibiting implementation of the contested transfers and a declaratory judgment stating that the board has no independent authority to make transfers of appropriated funds within any department.

After the complaint was filed, the parties submitted cross-motions for summary disposition. Granting defendants’ motion on May 23, 1991, the circuit court found that plaintiffs lacked standing to sue, and that their statutory and constitutional claims were without merit._

On the same day, plaintiffs appealed in the Court of Appeals and filed motions for a stay and for immediate consideration. Granting immediate consideration, the Court enjoined the transfers; however, before the Court of Appeals ruled on the merits of the case, defendants filed an emergency application seeking leave to appeal in this Court. In lieu of granting leave, we ordered the Court of Appeals to expedite its consideration of the case. Thereafter, the Court of Appeals decided that plaintiffs have standing and that the statutory authority relied upon by the board had been impliedly repealed.¹⁵ 190 Mich App 260, 264-265; 475 NW2d 440 (1991). We then granted leave to appeal, 439 Mich 1020 (1992).

ii

Before reviewing the Court of Appeals decision that § 3 was impliedly repealed, we first consider defendants’ contention that plaintiffs lack standing to bring this action. 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 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. Alexander v Norton Shores, 106 Mich App 287; 307 NW2d 476 (1981).

Here, plaintiffs claim standing on the basis of their status as legislators. In their complaint, they allege that the transfer actions of the board reduced their effectiveness as legislators and nullifled the effect of their votes. Plaintiffs claim that the board’s actions interfered with the authority of plaintiffs Jacobetti and Holmes as members of the House and Senate Appropriations Committees to approve or disapprove intradepartmental transfers under § 393 of the budget act. In addition, it is contended that the board’s actions diminished the effectiveness of plaintiffs Dodak and Miller who, as leaders, appoint members of their party to positions on the respective appropriations committees.¹⁶ Finally, plaintiffs allege that the board’s actions eliminated the need for the Governor to exercise his line-item veto power, thereby taking away the opportunity for plaintiffs to participate in a vote to override such a veto.

Under limited circumstances, the standing of legislators to challenge allegedly unlawful executive actions has been recognized in the federal courts. See, e.g., Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L Ed 1385 (1939); Kennedy v Sampson, 167 US App DC 192; 511 F2d 430 (1974); Dennis v Luis, 741 F2d 628 (CA 3, 1984). However, to establish standing, a legislator must overcome a heavy burden. Courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government. In Goldwater v Carter, 444 US 996, 997; 100 S Ct 533; 62 L Ed 2d 428 (1979), Justice Powell explained the basis for noninvolvement by the judiciary in such cases:

Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.

We agree. It would be imprudent and violative of the doctrine of separation of powers to confer standing upon a legislator simply for failing in the political process. For these reasons, plaintiffs who sue as legislators must assert more than "a generalized grievance that the law is not being followed . . . Chiles v Thornburgh, 865 F2d 1197, 1208 (CA 11, 1989). Instead, they must establish that they have been deprived of a "personal and legally cognizable interest peculiar to [them].” Dennis, supra, 741 F2d 631.

In this case, plaintiffs maintain that they have met this burden. In support of their argument, they rely on Coleman v Miller. There, a group of Kansas legislators challenged the power of the lieutenant governor to cast the tie-breaking vote in favor of a resolution adopting a proposed amendment of the federal constitution. The Court found that the legislators had standing to bring the action:

We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. . . . They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect and the state court has denied that right and privilege. [307 US 438. See also Kennedy v Sampson, supra, 167 US App DC 198 (no more essential interest could be asserted by a legislator than to vindicate the effectiveness of his vote).]

Defendants respond that plaintiffs have not demonstrated any direct injury as a result of defendants’ conduct. They argue that cases in which actions of the executive branch have specifically interfered with the legislative process are distinguishable from those in which executive actions are challenged simply as an improper execution of the law. For example, in Thornburgh, supra, a senator sued alleging that a federal detention facility was being run illegally. Finding that the senator lacked standing, the court concluded that "a Congressman only has standing if he alleges a diminution of congressional influence which amounts to a complete nullification of his vote, with no recourse in the legislative process.” 865 F2d 1207.

For additional support, defendants rely on Michigan authority, Killeen v Wayne Co Rd Comm, 137 Mich App 178, 189; 357 NW2d 851 (1984), wherein the Court of Appeals concluded that various government officials lacked standing to sue. The plaintiff group in Killeen included members of the Wayne County Board of Commissioners, two members of the Wayne County Charter Commission, and a state senator. They claimed standing to challenge the lawfulness of an agreement between the board of county road commissioners and a newly formed labor organization on the ground that the agreement nullified their respective legislative powers. The Court disagreed: "[T]he respective votes of Senator Hertel and charter commissioners Ward and Barnes have been counted, and their legislative work-product enacted; at this juncture their special interest as lawmakers has ceased.” 137 Mich App 189. For this reason, the Court concluded that they did not have standing to sue.¹⁷

In the case before us, defendants contend that the legislative work on which plaintiffs rely had been completed. The Legislature passed the Management and Budget Act. At this point, whether separate authority exists in the board to transfer funds within a department is a matter of statutory construction. If the Legislature disagrees with the board’s claim of transfer power under § 3, it can work a political resolution of the disagreement by expressly repealing § 3.

Recognizing this limitation, plaintiffs argue that their claim is more than a generalized assertion that the board is failing to follow the law. Instead, plaintiffs Jacobetti and Holmes contend that, as members of the legislative appropriations committees, they have a specific supervisory responsibility in connection with intradepartmental transfers. MCL 18.1391(3); MSA 3.516(391X3). By failing to follow transfer procedures set forth in the Management and Budget Act, plaintiffs claim that the board has denied them "their lawful right to approve or disapprove the transfers in question.”¹⁸

Plaintiffs rely on American Federation of Government Employees v Pierce, 225 US App DC 61; 697 F2d 303 (1982). In Pierce, Representative Sabo sued in his capacity as a legislator and as a member of the House Appropriations Committee. He challenged a reduction in force that was to be implemented by the Secretary of Housing and Urban Development. The court determined that Sabo did not have standing as a legislator because, in that capacity, his grievance was a general one about the proper execution of a law "which lacks the specificity to support-a claim of standing.” Id. at 63. However, the court did find that Sabo had standing as a member of the appropriations committee:

In the present case, the Appropriation Act gave Congressman Sabo the right, as a member of the Appropriations Committee, to participate in approval of any reorganization of hud conducted before January 1, 1983. The Secretary’s actions injured him by depriving him of that specific statutory right to participate in the legislative process. [Id.][¹⁹]

Although this Court is not bound to follow federal cases regarding standing,²⁰ we agree that Pierce lends support at least for the standing claim of plaintiff Jacobetti as a member of the House Appropriations Committee.²¹ As in Pierce, plaintiff Jacobetti has been denied a specific statutory right sufficient to confer standing. If, for purposes of considering this claim, we assume arguendo that § 3 of the State Administrative Board act was impliedly repealed,²² then intradepartmental transfers could be made only by the state budget director in accordance with § 393 of the Management and Budget Act. That act confers upon plaintiff Jacobetti a right to approve or disapprove such transfers. Under these circumstances, the board’s actions, if recognized, would deprive plaintiff Jacobetti "of that specific statutory right to participate in the legislative process.” Pierce at 63.

On the other hand, the standing claim of plaintiff Holmes is deficient even though he also is an appropriations committee member. In contrast to plaintiff Jacobetti, plaintiff Holmes did have the opportunity to vote on the transfer that is being disputed in this case. As earlier noted, pursuant to the Management and Budget Act, State Budget Director Woodworth proposed a transfer of funds within the Department of Natural Resources on March 27, 1991. That transfer involved the same dnr accounts as the transfer at issue in this case. The Senate Appropriations Committee approved the transfer.²³ Consequently, Senator Holmes, unlike Representative Jacobetti, is not suing to maintain the effectiveness of his vote under the Management and Budget Act; rather, he is suing to reverse the outcome of a political battle that he lost.

In addition, we find no basis for the contention that the board’s actions have interfered with the appointment authority of House Speaker Dodak or Senate Minority Leader Miller. Likewise, we are not persuaded by plaintiffs’ argument that the board’s actions have affected the Governor’s line-item veto authority or the power of members of the Legislature to override such a veto.²⁴ For these reasons, we conclude that only plaintiff Jacobetti, in his capacity as an individual member of the House Appropriations Committee has demonstrated a personal injury sufficient to confer standing to sue.²⁵

Having determined that at least one of the plaintiffs has standing, we turn next to the question whether § 3 of the State Administrative Board act, as amended, was impliedly repealed by subsequent acts of the Legislature.

hi

Courts within this state and throughout the country are reluctant to conclude that a statute has been repealed by implication. Numerous Michigan decisions have emphasized that

"[t]he presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary. Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary.” [Attorney General ex rel Owen v Joyce, 233 Mich 619, 621; 207 NW 863 (1926) (citations omitted); see also Jackson v Michigan Corrections Comm, 313 Mich 352; 21 NW2d 159 (1946); Rathbun v Michigan, 284 Mich 521; 280 NW 35 (1938); Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, 434 Mich 244; 454 NW2d 73 (1990).]

The law in Michigan accords with decisions of courts in other jurisdictions. See, e.g., Morton v Mancari, 417 US 535, 549; 94 S Ct 2474; 41 L Ed 2d 290 (1974); Davis v Devine, 736 F2d 1108, 1114 (CA 6, 1984); Paulson v Pierce Co, 99 Wash 2d 645; 664 P2d 1202 (1983); Vermont v Foley, 140 Vt 643; 443 A2d 452 (1982).

The basis of the presumption against implied repeals is explained by Sutherland in his treatise on statutory construction:

The presumption against implied repeals is founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation. Therefore, the drafters should expressly designate the offending provisions rather than leave the repeal to arise by implication from the later enactment. There is also the assumption that existing statutory and common law is representative of the popular will. This would reinforce the presumption against their alteration or repeal. [1A Singer, Sutherland Statutory Construction (4th ed), § 23.10, p 346.]

Despite the presumption against it, occasionally courts will determine that a statute has been repealed by implication. Old Orchard v Hamilton Ins, supra, 434 Mich 257. This Court has held that a repeal may be inferred in two instances: 1) when it is clear that a subsequent legislative act conflicts with a prior act, or 2) when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. Washtenaw Co Rd Comm’rs v Public Service Comm, 349 Mich 663, 680; 85 NW2d 134 (1957). In either situation the burden on the party claiming an implied repeal is a heavy one, because the intention of the Legislature to repeal a statute must be "clear.” Id.

In this case, the Court of Appeals held in the alternative that § 3 had been impliedly repealed by the 1976 amendments of § 6 of the State Administrative Board act, or by enactment in 1984 of the Management and Budget Act. We consider each of these conclusions in turn.

A

To understand the argument that § 3 was impliedly repealed by the 1976 amendments of § 6, it is necessary to recount some history concerning the board’s transfer authority.

As earlier noted, an amendment in 1931 of the State Administrative Board act restricted transfer authority in other respects; however, it specifically reserved to the board the power to "inter-transfer funds within the appropriation for the particular department.” Similar language to achieve this purpose was added in §§ 3 and 6.²⁶ Although both sections of the State Administrative Board act then shared this transfer language, each had a distinct purpose: § 3 conferred upon the board a general grant of supervisory control over "all administrative departments, boards, commissioners, and officers of the state, and of all state institutions,” whereas § 6 granted the board authority to oversee state accounting, architectural services, and the construction of state buildings. 1921 PA 2.

In 1939, § 6 was amended by 1939 PA 31. That amendment removed the board’s control over the system of state accounting; however, at that stage the board’s authority to transfer funds within a department remained in § 6 and was identical to the transfer language in § 3.

Subsequently, in 1976, an amendment imposing restrictions upon the transfer authority in § 6 was enacted. As amended by 1976 PA 120, § 6 then read in pertinent part:

(1) The state administrative board shall not transfer to any state department, board, commission, officer or institution any sum from the amount appropriated by the legislature for any other purpose, except to intertransfer funds within the appropriation for the particular department, board, commission, officer, or institution.

(2) Intertransfers of appropriations for any particular department or institution, shall not be made which will increase or decrease an item of appropriation by more than 3% or $30,000.00 whichever is greater, and in no case shall any item of appropriation be increased or decreased by more than $50,000 in the aggregate. . . .

(3) Intertransfers of appropriations for any particular department or institution in excess of the restrictions in subsection (2) may be made by the state administrative board only after approval by the house and senate appropriations committees.

Later, in 1984, when the Legislature passed the Management and Budget Act, the amended § 6 was expressly repealed by § 591 of that act. However, § 3 was left untouched. See MCL 18.1101 et seq.; MSA 3.516(101) et seq., and MCL 17.3; MSA 3.263.

The Court of Appeals concluded that the restrictions imposed on the board’s transfer authority in 1976 were "clearly repugnant to the unrestricted authorization to intertransfer funds contained in § 3 and relied upon by defendants.” 190 Mich App 276. Consequently, the Court held that "the 'inter-transfer’ language in § 3 was impliedly repealed by 1976 PA 120.” Id.

Of course, it is true that after the 1976 amendments of § 6, the board, at least for a period of time, did not possess unlimited power to transfer funds within departments. However, it does not follow that the general transfer power in § 3 was repealed by implication. The 1976 amendment of § 6 did not eliminate the board’s transfer authority; rather, that legislation expressly recognized the board’s authority, but circumscribed it with certain restrictions or exceptions concerning its exercise. To be sure, the general power provided in § 3 was then limited by restrictions in § 6, but only for as long as those restrictions remained in effect. Once those restrictions were later removed in 1984 by repeal of § 6, the board was empowered to exercise the transfer authority as set forth in § 3.

Our analysis is reinforced by this Court’s decision in Dykstra v Holden, 151 Mich 289; 115 NW 74 (1908). There, a mandamus action was instituted to compel a call for a primary election in Grand Rapids in accordance with 1895 PA 135, a general act controlling primary elections in cities. The general act applied to Grand Rapids until 1901 when the Legislature passed special legislation that exempted elections in Kent and certain other counties.²⁷ However, that law was later repealed, and the question presented was whether the repeal made the general law applicable.

It was asserted that the general law had been repealed to the extent of its conflict with the subsequent special legislation. Rejecting that argument, the Dykstra Court said that the subsequent legislation did not partially repeal the general law:

It merely exempted the city of Grand Rapids from the operation of said general law, and when the local act was repealed there was nothing to prevent the application of the general law, and it did apply. [151 Mich 293.]

The Dykstra Court followed a fundamental rule of statutory construction that " '[b]y the repeal of the act creating the exception, the general statute which was in force all the time then becomes applicable to all cases, according to its terms.’ ” Id. (Citation omitted.)²⁸ Likewise, in this case, when § 6 was repealed, the restrictions in that section were no longer in force and the transfer authority in § 3 became applicable according to its terms.

Finding no implied repeal of § 3 by the 1976 amendments of § 6, we turn now to the issue whether § 3 was impliedly repealed by the Management and Budget Act.

B

Of course, our inquiry into the Legislature’s intent when it passes a statute does not begin with committee reports or legislative analysis; rather, " '[t]he starting point in every case involving construction of a statute is the language itself.’ ” Int’l Brotherhood of Teamsters v Daniel, 439 US 551, 558; 99 S Ct 790; 58 L Ed 2d 808 (1979) (citation omitted). In this lawsuit, there is no claim that the transfer language in § 3 is ambiguous. Unless it has been repealed, § 3 clearly gives the board authority to transfer funds within a department.

However, the Court of Appeals found conflict between § 3 and § 393 of the Management and Budget Act, which reads in part:

(1) Administrative transfers of appropriations within any department to adjust for current cost and price variations from the enacted budget items, or to adjust amounts between federal sources of financing, may be made by the state budget director not less than 30 days after notifying the senate and house appropriations committees. Administrative transfers shall not include adjustments that have policy implications or that have the effect of creating, expanding, or reducing programs within that department. Those transfers may be disapproved by either appropriations committee within the 30 days and, if disapproved within that time, shall not be effective.

(2) A transfer of appropriations within any department for reasons other than cost and price variances from those appropriations as enacted into law shall not be made by the state budget director unless approved by both appropriations committees. If the budget director does not approve transfers adopted by both appropriations committees under this subsection, the budget director shall notify the appropriations committees of his or her action within 15 days. [MCL 18.1393; MSA 3.516(393).]

Finding § 3 "to be inconsistent with the Management and Budget Act,” the Court of Appeals concluded that "the Legislature intended to repeal [§ 3].” 190 Mich App 274. We disagree.

When two statutes address the same subject, courts must endeavor to read them harmoniously and to give both statutes a reasonable effect. Endykiewicz v State Hwy Comm, 414 Mich 377, 385; 324 NW2d 755 (1982). As this Court explained in Rathbun:

"The legal presumption is that the legislature did not intend to keep really contradictory enactments in the statute books, or to effect so important a measure as the repeal of a law without expressing an intention to do so. An interpretation leading to such a result should not be adopted unless it is inevitable.” [284 Mich 544. Citation omitted.]

Although we agree that § 3 and § 393 do relate to the same subject — transfers of funds within a department — we disagree with the Court of Appeals conclusion that the two sections are in "inevitable” conflict.

First, the transfer authority in § 393 is granted to the budget director while the transfer authority in § 3 is granted to the administrative board. The budget director and the board do not have the same duties: the primary duty of the budget director is to "plan and prepare a comprehensive executive state budget and execute, manage, and control the state budget which is enacted into law.”²⁹ In contrast, the State Administrative Board exercises general supervisory control over the various departments. It is reasonable to conclude that the Legislature determined that either of these separate entities might need to transfer funds within a department in order to perform its separate duties.

Indeed, such a conclusion is consistent with the approach taken by the Legislature when the State Administrative Board was created. As already noted, initially the board had dual responsibilities: it exercised general supervisory control over all state departments (§ 3), and it controlled the system of state accounting (§ 6). In each section, consistent with these powers, the Legislature reserved to the board the authority to transfer funds within departments. Even after the board’s control over state accounting was taken away in 1939, the board’s authority to order intradepartmental transfers was maintained.³⁰ It appears that the Legislature considered the authority to transfer funds within departments as necessarily correlative to the board’s function of supervising those departments. Likewise, it appears that the Legislature considered such transfer power necessarily correlative to the task of administering the state’s budget.

Second, looking again to the relationship between § 393 and § 3, not only do the budget director and the board have different duties, they utilize different decision-making procedures and they operate under different levels of accountability to the electorate. The budget director is appointed by the Governor and serves at the Governor’s pleasure.³¹ The director has been granted authority to effect significant transfers only with the approval of committees of the Legislature. By contrast, most of the members of the administrative board are elected in statewide elections. The board can authorize transfers only if a majority of the board agrees. As we read the two transfer sections (§ 393 and § 3), it is apparent that the Legislature has granted greater transfer authority to one entity that must deliberate and reach a consensus before acting and whose members are more directly accountable to the electorate. On the other hand, a much restricted transfer authority has been granted to the budget director, who is not directly accountable to the electorate. Nothing in such an arrangement is unreasonable.

Third, to the extent that the transfer powers of the board and the budget director overlap, the Legislature has put in place a mechanism to prevent conflicting exercises of transfer authority. The Governor may veto any board action with which he disagrees. Moreover, the budget director serves at the pleasure of the Governor. Given the Governor’s supervisory role over both means of effecting transfers, it is reasonable to conclude that conflicting transfers will not be authorized by the executive branch.

Plaintiffs dismiss such a construction of the statute as illogical. They assert that, over the years the Legislature has acted several times to curtail the board’s power, particularly in 1976 when it restricted the board’s transfer authority. In light of this history, plaintiffs claim that the Legislature surely could not have intended to restore the board’s transfer authority when it passed the Management and Budget Act. We are not persuaded by this argument. It may be true that in 1976 the Legislature was convinced that the transfer authority of the board was too broad. However, we refuse to assume that the Legislature’s motivation in 1976, when it enacted restrictions on that authority, mirrored its motivation in 1984 when it repealed those restrictions. Whatever the goals of the Legislature may have been in 1976, certainly a subsequent Legislature, composed of different elected officials, could have had a different goal.

More important, as noted above, when faced with two statutes that bear on the same subject, our task is not to discern the most logical construction of the more recent statute, but to "labor to permit the survival of both enactments if possible.” Davis v Devine, supra, 736 F2d 1112. We will not infer the repeal of a statute by a subsequent enactment except when the two acts are "so incompatible that both cannot stand.” In re Reynolds Estate, 274 Mich 354, 360; 264 NW 399 (1936).

Our approach is consistent with that taken by the United States Supreme Court in Tennessee Valley Authority v Hill, 437 US 153; 98 S Ct 2279; 57 L Ed 2d 117 (1978). The Court there considered whether a certain portion of the Endangered Species Act was impliedly repealed by appropriations made by Congress for construction of a dam in the Tennessee Valley. When the Endangered Species Act was passed, the dam already was being built. Over $50 million had been spent on the project. After passage of the Endangered Species Act, construction continued, as well as appropriations to fund the construction, even though construction of the dam violated the Endangered Species Act. The Court held that there was no implied repeal of the applicable section of the act, despite the seemingly inconsistent act of Congress appropriating funds for the dam’s construction:

We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to preempt congressional action by judicially decreeing what accords with "common sense and the public weal.” Our Constitution vests such responsibilities in the political branches. [437 US 195.]

Likewise, in this case it is of no consequence that the two sections dealing with the transfer of funds may seem redundant to some, as long as they are not in irreconcilable conflict. The statutes can reasonably be read so that they are not.

As an alternative basis for their claim that the Management and Budget Act repealed § 3 by implication, plaintiffs have also argued that the Management and Budget Act "was enacted as a comprehensive revision and consolidation of the laws relating to budgeting, accounting, and the regulating of appropriations.” They contend that the subject matter of § 3 was addressed completely in the Management and Budget Act, and that it is appropriate therefore to infer a repeal of § 3. The Court of Appeals agreed. It found that "the Legislature intended the Management and Budget Act to occupy the whole field of the budget process, and in particular intended § 393 to provide the exclusive means of transferring appropriations within any department.” 190 Mich App 274. Again, we disagree. Nothing in the text of the Management and Budget Act suggests that the Legislature intended to eliminate the administrative board’s power to transfer funds within a department. In fact, the text of the act suggests the opposite.

When a legislature expressly states which of several provisions in a statute it intends to repeal, the presumption is even stronger that it does not intend to repeal the provisions that remain. See, e.g., Washtenaw Co Rd Comm’rs, supra, 349 Mich 681; Davis v Devine, supra, 736 F2d 1112; Paulson v Pierce Co, supra at 650-651; United States v Hansen, 249 US App DC 22, 27; 772 F2d 940 (1985). In § 591 of the Management and Budget Act the Legislature expressly states what it intends to repeal. In that section, the Legislature lists thirty-six different public acts that are partially or wholly repealed by the Management and Budget Act. Section 6 of the State Administrative Board act is listed among the provisions that are repealed; § 3 is not.

Even so, § 3 is not ignored in the Management and Budget Act. Instead, suggesting the Legislature’s awareness of its existence and content, § 3 is specifically referred to in § 145 of that act.³²

As we read the Management and Budget Act, it is clear that the Legislature chose to repeal § 6, and it chose not to repeal § 3. When the Legislature performs such "deliberate legislative surgery” on a statute,³³ we decline to find a repeal by implication. As we said in Washtenaw Co Rd Comm’rs, supra, 349 Mich 681: " 'The rule of implied repeal is clearly inapplicable also where the revising statute declares what effect it is intended to have upon the former law ....’”

The rule is particularly inappropriate where the Legislature’s attention to a subject is as detailed as it was in this case. As the repealer section shows, when the Legislature enacted the Management and Budget Act it reviewed a multitude of prior enactments and specified which parts of those enactments were repealed. Given this comprehensive review, we find it doubtful, to say the least, that the Legislature could have by accident or oversight failed to repeal the transfer language of § 3 if that is what it had intended to do. Indeed, during oral argument, plaintiffs’ counsel conceded that he had no explanation for the Legislature’s failure to repeal § 3; his personal theory was that the section "just got by them.”

The transfer language in § 3 has existed since 1931. It has never been expressly repealed, despite regular and detailed attention to legislation that focused on the task of formulating and balancing the state’s budget. To now disregard the unambiguous language of that section on the basis that it has been impliedly repealed would be an "extraordinary step.” Smith v Smith, 433 Mich 606, 641; 447 NW2d 715 (1989) (dissenting opinion of Cavanagh, J.). Such a step is to be taken only when the legislative intent is clear. In this case, it is not.

IV

For the foregoing reasons, we disagree with plaintiffs claim that § 3 of the State Administrative Board act was repealed by implication. The decision of the Court of Appeals is affirmed in part and reversed in part.

Levin, Brickley, and Riley, JJ., concurred with Griffin, J.

1 MCL 17.3; MSA 3.263.

2 The State Administrative Board act, 1921 PA 2, MCL 17.1 et seq.; MSA 3.261 et seq.

3 MCL 18.1145; MSA 3.516(145).

4 Const 1963, art 5, § 21.

5 Under Const 1963, art 8, § 3 the Superintendent of Public Instruction is appointed by the State Board of Education. Under Const 1963, art 5, § 3 and MCL 12.9; MSA 3.83, the State Treasurer is appointed by the Governor.

6 1931 PA 6.

7 1939 PA 31.

8 1984 PA 431, MCL 18.1101 et seq.; MSA 3.516(101) et seq.

9 Executive Order 1991-5.

10 1991 PA 1 appropriated supplemental funds for various departments, including the Departments of Corrections, Mental Health, Public Health, Social Services, and State Police.

11 By the time this suit was filed on May 10, 1991, the projected deficit for FY 1990-91 had grown to $664 million.

12 The February requests proposed transfers of funds within the Departments of Corrections and Mental Health; the March request recommended a transfer of funds within the Department of Natural Resources.

13 Shortly after this lawsuit began, the Governor and leaders of the Legislature reached a budget agreement. As a result, the State Administrative Board rescinded ten of the eleven resolutions that it had adopted May 9, 1991. For purposes of this appeal, only one transfer resolution remains extant — the resolution transferring funds within the Department of Natural Resources.

14 Plaintiffs contend that § 3 is an unlawful delegation of legislative authority to the executive branch in violation of Const 1963, art 3, § 2 and art 4, §§ 1, 31. Further, they contend that the transfers exceed the authority of the Governor to reduce state expenditures under Const 1963, art 5, § 20.

15 The Court of Appeals did not reach plaintiffs’ constitutional claims. Nor did the plaintiffs brief or argue those claims in this Court.

16 See House Rule 7; Senate Rules 1.104, 1.105.

17 In his concurrence in Moore v United States House of Representatives, 236 US App DC 115; 733 F2d 946 (1984), Judge Scalia presented a similar view. There, he concluded that legislators did not have standing to sue on the basis of the alleged improper enforcement of a particular statute:

[A] proper understanding of the doctrine of separation of powers suggests that the personal desires of legislative and executive officers to exercise their authority are not within the "zone of interests” protected by the provisions of the Constitution and laws conferring such authority. Only the interests of particular individuals who would be aided by the exercise of that authority — and have been harmed by its unlawful deprivation — come within that zone, since the authority was conferred for the benefit not of the governors but of the governed. [236 US App DC 129. Citation omitted.]

18 First amended complaint, ¶ 29.

19 Similarly, in Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728; 322 NW2d 152 (1982), we considered the standing of township and city treasurers, acting in their official capacities, to challenge the actions of the Wayne County Drain Commissioner. Although we determined that under "extraordinary circumstances” plaintiffs may have standing, we held that in their official capacities the treasurers did not have standing to sue because there was no statutory authority that allowed the treasurers to review the actions of the drain commissioner. 413 Mich 742.

20 One 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. See Pennell v San Jose, 485 US 1, 8-9; 108 S Ct 849; 99 L Ed 2d 1 (1988).

21 Michigan courts previously have relied upon federal authority when deciding standing questions. See Killeen, supra; License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319, 324-325; 266 NW2d 808 (1978); White Lake Ass’n v Whitehall, 22 Mich App 262, 273; 177 NW2d 473 (1970); Fieger v Ins Comm’r, 174 Mich App 467, 471; 437 NW2d 271 (1988).

22 For purposes of determining a plaintiff’s standing, all pleaded allegations are to be accepted as true. Warth v Seldin, 422 US 490, 501; 95 S Ct 2197; 45 L Ed 2d 343 (1975).

23 As approved, the transfer would have taken $200,000 from the Clean Michigan Fund and transferred it to two separate land and water management accounts.

24 Const 1963, art 5, § 19.

25 Defendants argue alternatively that if this Court concludes that plaintiffs have standing to sue, the Court still should not hear the case on the basis of the federal doctrine of equitable discretion. The basis of this doctrine was explained by the court in Riegle v Federal Open Market Committee, 211 US App DC 284, 292; 656 F2d 873 (1981):

Where a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute, this court should exercise its equitable discretion to dismiss the legislator’s action.

We are conscious of the separation of powers concerns that have been raised. However, as defendants conceded in their brief in the Court of Appeals, this case involves an important question of continuing public interest that should be resolved by this Court. Further, it is unlikely that a private plaintiff could assert the claims that plaintiff Jacobetti now makes. Thus, we decline in this case to invoke the federal doctrine of equitable discretion without intimating its possible applicability in a future case.

26 The amendment added by 1931 PA 6 reads:

Provided, however, The said board shall not have power to transfer any appropriation to the general fund at any time or use the same for any purpose other than that designated by the legislature: Provided further, That said board shall not have power to allow to any state department, board, commission, officer or institution any funds, not appropriated therefor by the legislature, from any source whatever, except as provided in the emergency appropriation act of nineteen hundred thirty-one; and said administrative board shall not have the power to transfer to any state department, board, commission, officer or institution any sum from the amount appropriated by the legislature for any other purpose, except to inter-transfer funds within the appropriation for the particular department, board, commission, officer or institution. [Emphasis added.]

27 1901 LA 471.

28 As stated by the Supreme Court of California in People v Mitchell, 27 Cal 2d 678, 684; 166 P2d 10 (1946) (en banc):

" 'The statutory rule against the revival of a statute by the repeal of a repealing act relates to absolute repeals, and not to cases where a statute is left in force and all that is done in the way of repeal is to except certain cases from its operation. In such cases the statute does not need to be revived, for it remains in force, and the exception being taken away, the statute is afterwards to be applied without the exception ....”’

29 MCL 18.1341; MSA 3.516(341).

30 As the Attorney General noted in Opinion No. 4896, before the 1976 amendments of § 6 the board’s unrestricted authority to transfer funds within departments was well established:

It is apparent from the reading of the three sections involved [§§ 3, 6, and 9 of the Department of Administration Act, 1948 (Ex Sess) PA 51] that the State Administrative Board has authority to intertransfer without the limitations expressed in Section 9 [of Enrolled House Bill 4439], [OAG 1975-1976, No 4896, pp 133, 143 (September 9, 1975).]

31 MCL 18.1321; MSA 3.516(321).

32 Section 145(4) provides:

The state administrative board created under Act No. 2 of the Public Acts of 1921, being sections 17.1 to 17.3 of the Michigan Compiled Laws, is transferred as an organizational entity, together with all of its records, staff, property, and funds, to the department [of management and budget].

33 See Vermont v Foley, supra, 140 Vt 648.