Opinion
SC: 164388 COA: 359887
07-22-2022
MACOMB COUNTY PROSECUTOR, Plaintiff-Appellee, v. MACOMB COUNTY EXECUTIVE and County of Macomb, Defendants-Appellants.
Order
On order of the Court, the motion of the Macomb County Board of Commissioners to file a brief amicus curiae is GRANTED, and the defendants’ motion to strike the amicus brief is DENIED. The motions for immediate consideration are GRANTED. The application for leave to appeal the March 31, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J., (concurring).
I concur in this Court's denial order because I believe the Court of Appeals reached the correct result. I write separately because this result is not intuitive in some respects and the statutory language at issue might benefit from being revisited by the Legislature. Under the Uniform Budgeting and Accounting Act, MCL 141.421 et seq. , certain individuals are granted standing to challenge municipal budgeting decisions. MCL 141.438(6), in pertinent part, allows for actions to enforce an appropriation already made:
An elected official who heads a branch of county government or the chief judge of a court funded by a county has standing to bring suit against the chief administrative officer of that county concerning an action relating to the enforcement of a general appropriations act for that branch of county government or that court.[ ]
To force an appropriation of money from the municipality's legislative body, MCL 141.436(9), which contains the same phrase at issue here, provides in relevant part:
An elected official who heads a branch of county government or the chief judge of a court funded by a county has standing to bring a suit against the legislative body of that county concerning a general appropriations act, including any challenge as to serviceable levels of funding for that branch of county government or that court.
The critical question in the present case is whether plaintiff, in his capacity as the Macomb County prosecutor, has standing to bring this action as an "elected official who heads a branch of county government" under MCL 141.438(6). There is no dispute that he is an elected official and that he heads Macomb County's prosecutor's office. So the issue boils down to whether that office is a branch of county government. At least to those who have attended government class, the notion that a local prosecutor's office is an entire branch of government sounds odd. A "branch" of government generally calls to mind the legislative, executive, and judicial branches. That is how our Constitution talks about them, for example, in the context of state government. See Const. 1963, art. 3, § 2 ("The powers of government are divided into three branches: legislative, executive and judicial."). But we have recognized that "[m]unicipal government in Michigan typically has not been divided among three branches of government." Rental Prop. Owners Ass'n of Kent Co. v. Grand Rapids , 455 Mich. 246, 267, 566 N.W.2d 514 (1997). In some municipalities, the executive "serves at the will of the" legislative body, while in others the legislative and executive functions are blended. Id. , citing MCL 117.3. In yet others, the legislative body exercises executive powers. Id. at 267-268, 566 N.W.2d 514.
These general observations about municipal government, however, are not entirely germane here. Macomb County operates as a charter county. See generally MCL 45.501 et seq. The statute allowing charter counties arguably establishes a more formal and traditional division of powers, at least with regard to the executive and legislative branches. See Ward, The Charter Form of County Government: Wayne County, 25 Years Later , 54 Wayne L Rev 1791, 1804 (2008) (citing the statutes and noting they "establish[ ] the executive form of county government and expressly separates the powers of the executive and the legislative branches"). The statute calls for a chief administrative officer or an executive who will wield veto power. MCL 45.514 ; MCL 45.511a. There also must be an elected legislative body. MCL 45.514(1)(b). The wrinkle in the present case, however, is that the statute also provides for the election of various officials who would otherwise seem to fall within the executive branch. See MCL 45.514(1)(c) (requiring "[t]he partisan election of a sheriff, a prosecuting attorney, a county clerk, a county treasurer, and a register of deeds, and for the authority of the county board of commissioners to combine the county clerk and register of deeds into 1 office as authorized by law"). Thus the executive power, at least, is dispersed. Cf. Charter Form of County Government , 54 Wayne L Rev at 1800 (noting that the Legislature retained a " ‘multiple elected executives’ requirement" from a previous version of the statute) (citation omitted).
With regard to the judiciary, the Court of Appeals in the present case concluded that the Macomb Circuit Court did not represent a county judicial branch because under Const. 1963, art. 6, § 1, "the judicial power of the state is vested exclusively in one court of justice...." Consequently, the Court of Appeals concluded that the circuit court is part of the state judiciary. But counties are required to fund the circuit courts and some district courts and, for that reason alone, it is arguable that those courts should be considered a branch of county government for purposes of a statute regulating their budget. This question, however, need not be resolved in the present case.
The question here thus becomes whether one of these elected officials, the prosecutor, heads a "branch" of county government under MCL 141.438(6). The Court of Appeals adequately explained why he does. A "branch" is relevantly defined as "[a]n offshoot, lateral extension, or division of an institution[.]" Black's Law Dictionary (11th ed.). The Macomb County Prosecutor's Office is a division of county government and therefore constitutes a "branch." Defendants contend, however, that the statute expressly differentiates between branches and departments, which defendants claim exist within branches. MCL 141.438(12) offers some support for this, as it provides that "[t]he pendency of a claim in a suit under this section shall not constitute a basis for expenditure of funds by any department or branch of, or court funded by, the county" exceeding the amount appropriated. (Emphasis added). The problem with defendants’ argument is that it, at best, restricts application of the phrase "branch of county government" to a single specific branch, which the Legislature could have easily named had it intended for the phrase to be so limited. Defendants posit that the statute could encompass only the three traditional branches of government—the executive, the legislative, and the judicial. Under this interpretation, only the "head" of the legislative body—here, the Macomb County Board of Commissioners—would fit the bill as "[a]n elected official who heads a branch of county government ...." MCL 141.438(6). And, as the Court of Appeals observed, it is arguable whether the board has a "head" as contemplated by the statute. Under defendants’ reading, the phrase would not include the executive himself because the statute is establishing who can sue the executive. And the phrase would not need to extend to the judiciary, as the statute specifically provides that the "chief judge of a court funded by a county has standing ...." MCL 141.438(6).
Consequently, the phrase "elected official who heads a branch of county government" would mean, at most, the chair of the board. For the same reasons, the same phrase in the serviceability provision of the statute, MCL 141.436(9) —which allows suits against the legislative body for appropriations—would refer only to the county executive or administrator. If the Legislature had intended the same phrase in each statute to refer only to one specific branch or individual, it would be reasonable to conclude that the branch or individual would have been specifically named. The fact that the Legislature used a more general phrase, which by its terms encompasses a category of individuals, is an indication that the Legislature intended the broader meaning.
Although not necessary to my conclusion, it is interesting to note that when MCL 141.436(9) and MCL 141.438(6) were introduced in the House of Representatives, neither contained the phrase at issue: "an elected official who heads a branch of county government." Instead, each restricted standing to a particular office or entity. In particular, the provision that became MCL 141.438(6) stated that "the legislative body of a county has exclusive standing to bring suit against the chief administrative officer of that county" to enforce "a general appropriations act for any department or branch of that county, including a department or branch headed by another elected or appointed official." 2013 HB 4704, § 18(6) (emphasis added). And the provision that eventually became MCL 141.436(9) limited standing to "the chief administrative officer of a county." 2013 HB 4704, § 16(9).
For these reasons, I believe the Court of Appeals properly resolved this issue, the most important in the case. But the result is, perhaps, not intuitive, and the Legislature might wish to further clarify its intent.