Judicial Attorneys Ass'n v. State

459 Mich. 291

• Court: Michigan Supreme Court
• Decided: December 28, 1998
• Docket: Docket No. 111782, 111785
• Status: Published

Opinions

Mallett, C.J.

In the case of Judicial Attorneys Ass’n v State of Michigan, we granted leave to determine whether a provision of 1996 PA 374, MCL 600.593a; MSA 27A.593a, violates the Separation of Powers Clause of Const 1963, art 3, § 2, and the rights of members of the plaintiffs under the public employee relations act (pera), MCL 423.201 et seq.-, MSA 17.455(1) et seq. 457 Mich 883 (1998).

We hold that subsections 593a(3):(10) and the parallel provisions of §§ 591, 837, 8271, 8273 and 8274 of 1996 PA 374, concerning employees of the circuit, probate, and district courts, are unconstitutional. This finding makes the issue concerning the pera moot. Under separate order we enact Administrative Order No. 1998-5, concerning chief judge responsibilities and local intergovernmental relations.

i

1996 PA 374 provided that, effective October 1, 1996, a local judicial council¹ created pursuant to the act or Wayne County became the employer of the employees of the Third Judicial Circuit and Recorder’s Courts,² rather than the State Judicial Council abolished by the act.

(3) If the Wayne county judicial council is not created pursuant to subsection (1), the employees of the former state judicial council serving in the circuit court in the third judicial circuit or in the recorder’s court of the city of Detroit shall become employees of the county of Wayne, effective October 1, 1996.

(4) The employer designated under subsection (2) or (3), in concurrence with the chief judge of the appropriate court, has the following authority.

(a) To establish personnel policies and procedures, including, but not limited to, policies and procedures relating to compensation, fringe benefits, pensions, holidays, leave, work schedules, discipline, grievances, personnel records, probation, and hiring and termination practices.

(b) To make and enter into collective bargaining agreements with representatives of those employees.

(5) If the employer designated under subsection (2) or (3) and the appropriate chief judge are not able to concur on the exercise of their authority as to any matter described in subsection (4) (a), that authority shall be exercised by either the employer or the chief judge as follows:

(a) The employer has the authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave.

(b) The chief judge has authority to establish policies and procedures relating to work schedules, discipline, grievances, personnel records, probation, hiring and termination practices, and other personnel matters not included in subdivision (a).

On September 26, 1996, the plaintiffs — two unions whose members performed work in the Third Circuit and Recorder’s Courts — brought this action challenging the change of employer. The trial court issued a preliminary injunction on September 30, 1996, enjoining the change. On October 9, 1996, the Court of Appeals granted the defendants’ motion for a stay of the preliminary injunction. The trial court subsequently issued a permanent injunction against enforcement of § 593a to the extent that it made Wayne County a coemployer of plaintiffs’ members, but stayed the injunction pending a final decision by the appellate courts.

On March 3, 1998 the Court of Appeals upheld the trial court’s finding that § 593a violated the separation of powers doctrine.³ 228 Mich App 386; 579 NW2d 378 (1998). The majority held that the circuit court, as a division of Michigan’s one court of justice, “possesses the inherent and exclusive power to manage all its operations,” id. at 413, that the court’s inherent administrative powers include the authority to manage all personnel matters affecting employees working within its branch, and that a “usurpation of all the court’s employees can be viewed as [a] . . . dangerous incursion into the judicial realm” by the legislative branch.⁴ Id. at 416. We affirm.

n

Const 1963, art 3, § 2 provides:

The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers. In re Southard, 298 Mich 75, 83; 298 NW 457 (1941); People v Piasecki, 333 Mich 122, 146-148; 52 (1952); Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982). If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible. Soap & Detergent Ass’n, supra at 752-753; Mistretta v United States, 488 US 361, 382; 109 S Ct 647; 102 L Ed 2d 714 (1989).

For purposes of determining the constitutionality of § 593a, the critical questions are whether the judicial branch’s powers necessarily include the administrative function of controlling those who work within the judicial branch, and, if so, whether the legislatively prescribed sharing of personnel functions delineated in § 593a is sufficiently limited and specific so as not to encroach on the exercise of the constitutional responsibilities of the judicial branch.

That the management of the employees of the judicial branch falls within the constitutional authority and responsibility of the judicial branch is well established. The power of each branch of government within its separate sphere necessarily includes managerial administrative authority to carry out its operations. As this Court explained in Wayne Circuit Judges v Wayne Co, 383 Mich 10; 172 NW2d 436 (1969), superseded by 386 Mich 1; 190 NW2d 228 (1971) (On Rehearing):

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.

Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish those housekeeping chores both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department. [383 Mich 20-21.]

The application of this principle to state-paid employees within each branch of government has long been uncontroversial. The Legislature provides the funding for all state employees, but state employees working for the Legislature are unquestionably under the exclusive control of the Legislature, those working for the executive branch, under the exclusive control of the executive branch, and those working for the Supreme Court and the Court of Appeals, under the exclusive control of the judicial branch.

What has proved to be so obvious in the context of state employees, however, has been more elusive in the context of Michigan’s trial courts, whose employees have not always enjoyed the same clarity of status as their state-paid counterparts.⁵ The explanation for this phenomenon surely lies in the complicated and diverse history of our trial courts.

There is no public environment in the state of Michigan more complex than the trial court component of the state’s “one court of justice.” Under art 6, § 4 of the state constitution, the Michigan Supreme Court has general supervisory control of the courts and is constitutionally responsible for the efficient and effective operation of all courts within the state court system, but the day-to-day operation of the state’s trial courts is in the hands of the chief judges of each court. The chief judges in turn are accountable to the Supreme Court and to the public for the operation of their courts, and are dependent on over 150 separate local governmental units for the bulk of the operational funding for their courts. Const 1963, art 6, §§ 1, 4. MCR 8.110. Grand Traverse Co v Michigan, 450 Mich 457, 475; 538 NW2d 1 (1995). As a farther complication, the jurisdiction of some courts is spread across several counties or municipalities, which must share funding responsibilities.

Despite the complications of the trial court environment, the case law, taken as a whole, has come to strongly affirm that the fundamental and ultimate responsibility for all aspects of court administration, including operations and personnel matters within the trial courts, resides within the inherent authority of the judicial branch.⁶

The judiciary is an independent department of the State, deriving none of its judicial powers from either of the other 2 departments. This is true although the legislature may create courts under the provisions of the Constitution. The judicial powers are conferred by the Constitution and not by the act creating the court. The rule is well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a co-ordinate branch of the government. It is only in such a manner that the independence of the judiciary can be preserved. The courts cannot be hampered or limited in the discharge of their functions by either of the other 2 branches of government. To remove bailiffs and other court personnel for cause is an inherent power of the judiciary. [Gray v Clerk of Common Pleas Court, 366 Mich 588, 595; 115 NW2d 411 (1962).]

See also Judges of the 74th Judicial Dist v Bay Co, 385 Mich 710, 727; 190 NW2d 219 (1971), in which this Court found the authority of the district court to set the salaries of its employees to be “wholly consonant with the constitutionally prescribed functioning of the courts under inherent powers”; Livingston Co v Livingston Circuit Judge, 393 Mich 265; 225 NW2d 352 (1975), in which this Court relied on the inherent powers of the judiciary in holding that the circuit court was the employer of court personnel for purposes of salary negotiations; and Ottawa Co Controller v Ottawa Probate Judge, 156 Mich App 594; 401 NW2d 869 (1986), which affirmed the authority of the probate court to set the salaries of its employees as long as the court’s total budget remains within the total budget appropriation set by the county board.

Defendants argue that the employment functions delegated to the trial court funding units by § 593a are sufficiently specific and limited so as to survive constitutional scrutiny. The Court of Appeals emphatically rejected that assertion.

Subsection 593a(3) is an outright takeover of the court’s employees, making them employees of the county. From a separation of powers standpoint, it is troubling that persons working solely within one branch be regarded as employees of another branch of government. Employing and managing personnel to carry out day-to-day operations is one of the most basic administrative functions of any branch of government. This Court has already suggested that, pursuant to the doctrine of separation of powers, one branch of government should not be subject to oversight by another branch in personnel matters. In Beadling v Governor, 106 Mich App 530, 536; 308 NW2d 269 (1981), this Court held that it would be a violation of the separation of powers doctrine “if the executive branch was allowed to judge the competency of a discharged employee of the legislative branch and order reinstatement.” There, this Court observed that the employee at issue in Beadling held a position that “was one of some sensitivity within the legislative process” and that if executive oversight were allowed it would “allow a dangerous incursion into the legislative realm.” Id. Surely a usurpation of all the court’s employees can be viewed as an equally dangerous incursion into the judicial realm. Accordingly, we view subsection 593a(3) as a violation of the Separation of Powers Clause. [228 Mich App 415-416.]

We agree with plaintiffs and the Court of Appeals majority that subsection 593a(3) is not a sufficiently limited exercise by one branch of another branch’s power, and therefore that it impermissibly interferes with the judiciary’s inherent authority to manage its internal operations. Our reasoning applies not only to subsection 593a(3), but also to subsections 593a(4)-(10) which elaborate on subsection 593a(3).⁷ Subsection 593a(3) unequivocally designates the funding unit as the employer of personnel working in the court. Subsections 593a(4)(a)-(b) gives to the funding unit exclusive authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave of court personnel, and to make and enter into collective bargaining agreements with representatives of those employees.

Although subsection 593a(5) preserves a limited role for the chief judge of the trial court in those aspects of decision making concerning trial court personnel that the Legislature considered noneconomic, this limited return to the judicial branch of authority over employees is not sufficient to overcome the provision’s constitutional flaw: that the fundamental employer role of judicial branch employees is to be exercised by the local legislative branch rather than by the judicial branch itself.

The very framework of subsections 593a(3)-(10), in which the employer function is delegated to the legislative branch and then specific, limited subfunctions returned to the judicial branch, refutes defendant’s argument that the encroachment on the judicial branch’s powers is specific and limited. The judicial branch is constitutionally accountable for the operation of the courts and for those who provide court services, and must therefore be the employer of court employees. It is, of course, well established, both as a practical and a constitutional matter, that in the exercise of its employment responsibilities the judiciary must take into account the limited dollars appropriated to it by the legislative branch in the exercise of the Legislature’s own constitutional responsibility. See, for example, Bay Co, supra at 726-727, and Ottawa Co, supra at 603. The practical necessity for the judiciary to reach accommodation with those who fund the courts on an annual basis, however, cannot, as a constitutional matter, be used as an excuse to diminish the judiciary’s essential authority over its own personnel.

in

In making the determination that § 593a violates the separation of powers doctrine, we are cognizant of the heavy burden that challenges to the constitutionality of a statute must overcome. To make a successful facial challenge to the constitutionality of a statute, the challenger “ ‘must establish that no set of circumstances exists under which the [a]ct would be valid.’ ” Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 568, 602; 566 NW2d 208 (1997), quoting United States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). We believe that there is indeed no set of circumstances under which the statutory assumption by the legislative branch of the function of employer and the exercise of primary decision making concerning employment of judicial branch employees by the legislative branch does not violate the separation of powers doctrine. The judicial branch may determine on its own authority, for practical reasons, to share with the legislative branch some limited employment-related decision making upon determining that such sharing is in the best interests of the judicial branch and the public as a whole. Such cooperation has in fact occurred and has proven to be beneficial in many jurisdictions, but the possibility that a court may choose to share decision making in a manner that resembles the scheme of § 593a does not qualify as a set of circumstances that overcomes the facial chai-lenge. The constitutionality of an act must rest on the provisions of the act itself, and not on the compensating actions of those affected by the act. Rassner v Federal Collateral Society, Inc, 299 Mich 206, 215; 300 NW 45 (1941).

For all these reasons, we hold that subsections 593a(3)-(10) and the parallel provisions of §§ 591, 837, 8271, 8273 and 8274 of 1996 PA 374 concerning employees of the circuit, probate and district courts are unconstitutional and must be stricken. We find that the stricken provisions are severable from Act 374, and see no need to strike down the entire act.

rv

The doctrine of separation of powers is a shield for each of the branches of government to use for the protection of our form of government and for the people it serves; it is not a sword to be used by one branch against another. Security for the balance of powers “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Hamilton, The Federalist, No. 51 (New York: New York Heritage Press, 1945), p 347.

Separation of powers does not preclude what has proven to be the rule rather than the exception in the operation of Michigan’s trial courts: cooperation, communication, and accommodation between trial courts and their funding units in their exercise of shared responsibility to the public. The philosophical underpinnings of the separation of powers doctrine, Michigan case law, and common sense all point toward such cooperation. In Employees & Judge of the Second Judicial Dist Court v Hillsdale Co, 423 ; 378 NW2d 744 (1985), this Court observed that “an indispensable ingredient of the concept of coequal branches of government is that ‘each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.’ United States v Will, 449 US 200, 228; 101 S Ct 471; 66 L Ed 2d 392 (1980).”

Lack of respect, cooperation, and communication between chief judges and representatives of local funding units can produce barriers to optimal court operations, and can lead to costly litigation.

v

In the wake of the enactment of Act 374 and the filing of the plaintiffs’ complaint, employment issues concerning all the state’s 241 trial courts were in an increasingly unstable condition. To help resolve the immediate operational difficulties created by the situation in general, on August 18, 1997, the Supreme Court issued Administrative Order No. 1997-6.⁸ The order outlined specific terms of conduct by trial court chief judges designed to maximize cooperation and communication with funding units over employment issues, within the constraints of the judiciary’s fundamental constitutional obligations. In that order, we noted that with the judiciary’s responsibility to determine what is reasonable and necessary to administer the courts comes not only the necessity of prudent management, but also the burden of informing, listening to, and attempting to persuade those within the legislative branch whose own duties include funding the courts.

In enacting the scheme of divided employment responsibilities that today we find to be a violation of separation of powers, we believe that the Legislature was responding to legitimate complaints by some counties that the trial court chief judges in their counties had failed to carry this burden. The clear implication of their testimony was that by excluding the counties from any involvement in or understanding of the courts’ employment decisions, the courts had thwarted the counties’ ability to carry out their own primary constitutional responsibilities and had unnecessarily frustrated relations with the funding units’ own employees, to the detriment of the public. We believe that the testimony offered by counties before the House and Senate Judiciary Committees in the deliberations that led up to the enactment of Act 374 demonstrated the need for some chief judges to be more heedful of the practical needs of the counties in the exercise of their overall funding responsibilities for county and court operations. Therefore, under separate order today, we affirm and extend current provisions of Administrative Order No. 1997-6 that we believe will serve the present, immediate need for structuring more positive relations between chief judges and their funding units in the interest of promoting greater understanding, cooperation, and better service to the public.

Affirmed.

Brickley, Cavanagh, Boyle, Weaver, and Kelly, JJ., concurred with Mallett, C.J.

1 The option to create a judicial council as employer expired on October 1, 1996.

2 Pursuant to Act 374, Recorder’s Court ceased to operate October 1, 1997, because the Third Circuit Court acquired its jurisdiction and functions. As of the date of the issuance of this opinion, federal challenges to the abolition of Recorder’s Court are pending.

3 Judge Markman dissented in part, stating that because no controversy had yet arisen concerning § 593a between the Third Circuit or its chief judge and Wayne County, the judiciary’s authority had not been undermined and that the dispute was not ripe for adjudication. On the pera question, Judge Markman found the county and the court to be coemployers under § 593a, and agreed with the trial court that § 593a did not violate the pera because it did not impair plaintiffs’ members’ ability to collectively bargain over the terms and conditions of their employment.

4 Because the majority found § 593a to be unconstitutional, it reasoned that the claim that the provision violated the public employees relations act was moot.

5 In 1971, Justice Thomas E. Brennan, in a separate opinion in Wayne Co Judges, 386 Mich 17, observed that cases from as late as the mid-1950’s “cast light on the ‘hands off attitude of former times, in which it was thought that the administration of the courts was a thing distinct and apart from the administration of justice.”

6 Over the years, some trial court judges have arrived at agreements under which the trial courts have allowed their funding units to negotiate on their behalf directly with court employees. In those jurisdictions, typically, the terms and conditions of the court employees vary little if at all from those of the funding unit employees. In contrast, in many jurisdictions the funding units have not desired to play any role concerning the terms and conditions of trial court employment. And in a few jurisdictions, from time to time, courts and their funding units have found themselves at loggerheads over employment issues. It is from this category that our case law concerning separation of powers and court employment arises.

7 Our reasoning also applies to the identical, parallel provisions found in §§ 591, 837, 8271, 8273, and 8274 of 1996 PA 374, concerning employees of the circuit, probate, and district courts. Because we have concluded that subsections 593a(3)-(10) are unconstitutional, the issue of the rights of members of the plaintiffs under the public employee relations act is moot.

8 The order by its explicit terms did not address the employment questions raised by this case for employees of the Third Circuit, Recorder’s Court, and the 36th District Court.