Martin v. Murray

309 Mich.App. 37

867 N.W.2d 444

MARTIN

v.MURRAY.

Docket No. 319509.

Court of Appeals of Michigan.

Submitted Jan. 14, 2015, at Detroit.

Decided Jan. 20, 2015, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Scott R. Shimkus, Michelle M. Brya, and Joshua O. Booth, Assistant Attorneys General, for plaintiff.

Constitutional Litigation Associates, PC, Detroit (by Hugh M. Davis and Cynthia Heenan ), for defendants.

Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

Opinion

JANSEN, J.

Defendants, present and former members of the Detroit Public Schools Board of Education (“board of education” or “board”),¹ appeal by right the circuit court's opinion and order of November 22, 2013, confirming the authority of the Detroit Public Schools Emergency Manager (“emergency manager”) to fill vacancies on the board of education and denying defendants' motion to set aside the emergency manager's appointment of Jonathan Kinloch to the board. We affirm.

I

In late 2008, the Superintendent of Public Instruction declared the existence of a financial emergency within the Detroit Public Schools (“DPS”). In accordance with Michigan's then-existing emergency financial manager law, 1990 PA 72,² the Governor appointed Robert Bobb to serve as the DPS emergency manager.

The Legislature subsequently enacted the Local Government and School District Fiscal Accountability Act, 2011 PA 4,³ effective March 16, 2011, which repealed and replaced the provisions of 1990 PA 72. On May 4, 2011, the Governor appointed Roy Roberts to succeed Bobb as the DPS emergency manager. The Governor reappointed Roberts on March 30, 2012, and the reappointment became effective on April 2, 2012. See Davis v. Emergency Manager for the Detroit Pub. Sch., 491 Mich. 899, 901, 904, 810 N.W.2d 555 (2012) (Young , C.J., concurring).

Meanwhile, on February 29, 2012, petitions seeking a referendum on 2011 PA 4 were filed with the Secretary of State. On a 2–2 vote, the Board of State Canvassers initially refused to certify the petitions. However, our Supreme Court ultimately ordered the Board of State Canvassers to certify the petitions and submit the matter to the electors. Stand Up for Democracy v. Secretary of State, 492 Mich. 588, 595, 822 N.W.2d 159 (2012) (opinion by Kelly , J.). On August 8, 2012, following the Supreme Court's decision in Stand Up for Democracy, the Board of State Canvassers unanimously voted to certify the petitions and place the referendum on the November 6, 2012, general election ballot.

2011 PA 4 was suspended for the duration of the referendum process, and the provisions of 1990 PA 72 temporarily came back into effect pending the certification of the November 2012 general election results. Const. 1963, art. 2, § 9 ; see also OAG, 2011–2012, No. 7,267, p. 72, at 78 (August 6, 2012). At the general election of November 6, 2012, the electors rejected 2011 PA 4 by a vote of 2,130,354 in favor to 2,370,601 in opposition. The electors' rejection of 2011 PA 4 permanently revived 1990 PA 72. See McDonald v. Grand Traverse Co. Election Comm., 255 Mich.App. 674, 680–681, 662 N.W.2d 804 (2003) ; see also OAG, No. 7,267 at 77.⁴

Soon thereafter, the Legislature enacted the Local Financial Stability and Choice Act, 2012 PA 436,⁵ effective March 28, 2013, repealing and replacing 1990 PA 72. The Legislature specifically declared that it intended 2012 PA 436 to “function and be interpreted as a successor statute to ... former 1990 PA 72, and former 2011 PA 4....” 2012 PA 436, enacting § 2. In particular, the statute provides that the determination or confirmation of a financial emergency within a local unit of government under the former 1990 PA 72 or the former 2011 PA 4 remains effective. MCL 141.1570(1). On July 15, 2013, in accordance with 2012 PA 436, the Governor appointed Jack Martin to succeed Roberts as the DPS emergency manager.⁶

II

The board of education presently consists of 11 members.⁷ Board member Carol Banks submitted her letter of resignation, effective June 28, 2013, thereby creating a vacancy on the board of education. The remaining board members publicized the vacancy through social media and solicited applications from interested persons. At a regularly scheduled meeting on July 11, 2013, the remaining 10 members of the board of education interviewed 3 applicants and ultimately voted to appoint Sherry Gay–Dagnogo to fill the vacancy. Gay–Dagnogo was purportedly sworn in at that time. One day earlier, on July 10, 2013, Roberts had issued an order in his capacity as emergency manager appointing Jonathan Kinloch to fill the vacancy on the board of education; it appears that Roberts personally administered the oath of office to Kinloch at the time of his appointment. Kinloch appeared at the regular meeting of July 11, 2013, but the officers of the board of education refused to acknowledge him or include him in the roll call of board members.

III

The present action was commenced on August 8, 2012, when Roberts sued defendants for declaratory, injunctive, and other relief. Roberts alleged that defendants, the 11 members of the board of education, were acting or threatening to act outside their authority. Roberts requested that the circuit court enjoin them from abrogating plans, changing programs, canceling contracts, and altering budgets in advance of the upcoming 2012–2013 school year. Litigation was protracted, and numerous motions seeking additional relief were filed throughout the course of the circuit court proceedings. Eventually, on October 8, 2013, defendants filed a motion requesting that the circuit court (1) set aside the emergency manager's appointment of Kinloch to the board of education and (2) declare that the emergency manager is not authorized to fill vacancies on the board of education. Defendants argued that notwithstanding the existence of a financial emergency within the district and the broad powers conferred upon the emergency manager by law, the remaining board members—and not the emergency manager—possessed the exclusive authority to fill any vacancy on the board of education occasioned by a member's resignation. Defendants contended that the sections of 2012 PA 436 granting emergency managers the authority to fill such vacancies were unconstitutional and violated the separation-of-powers doctrine.

The circuit court acknowledged that under the Revised School Code, MCL 380.1 et seq., and the Michigan Election Law, MCL 168.1 et seq., the 10 remaining members of the board of education would have possessed the authority to fill the vacancy occasioned by Banks's resignation if there had been no declared financial emergency within DPS at the time. However, citing MCL 141.1549(2), MCL 141.1552(1)(ee) and (ff), and MCL 141.1552(2), the circuit court ruled that the emergency manager possessed the exclusive power to fill the vacancy occasioned by Banks's resignation unless that power was specifically delegated to the board of education in writing. Because this power of appointment had not been delegated to the board, the circuit court held that the emergency manager's appointment of Kinloch was valid and that the board of education's purported appointment of Gay–Dagnogo was void. In addition, the court rejected defendants' argument that the sections of 2012 PA 436 which grant appointment powers to emergency managers violate the constitutional doctrine of separation of powers.

IV

Whether the authority to fill the vacancy on the board of education rested with the emergency manager or the remaining board members is a question of law. “Questions of law, including questions of statutory interpretation, are reviewed de novo on appeal.” Risk v. Lincoln Charter Twp. Bd. of Trustees, 279 Mich.App. 389, 396, 760 N.W.2d 510 (2008). Similarly, “[w]hether a violation of the separation of powers doctrine has occurred is a question of law that this Court reviews de novo.” Harbor Tel. 2103, LLC v. Oakland Co. Bd. of Comm'rs., 253 Mich.App. 40, 50, 654 N.W.2d 633 (2002). Inasmuch as defendants sought declaratory and injunctive relief, we generally review such matters for an abuse of discretion. Mich. Coalition of State Employee Unions v. Civil Serv. Comm., 465 Mich. 212, 217, 634 N.W.2d 692 (2001) ; Allstate Ins. Co. v. Hayes, 442 Mich. 56, 74, 499 N.W.2d 743 (1993) ; Barrow v. Detroit Election Comm., 305 Mich.App. 649, 662, 854 N.W.2d 489 (2014).

V

As a preliminary matter, we note that defendants actually sought two different forms of relief from the circuit court. First, they sought a declaration that the emergency manager lacked the authority to fill vacancies on the board of education in general. Second, they sought a judgment invalidating the emergency manager's appointment of Kinloch to the board of education. Examining their second request first, we note that defendants' attempt to invalidate the emergency manager's appointment of Kinloch, and to effectively “try title” to the office of member of the board of education, likely should have been brought by way of quo warranto rather than by way of a motion. “Quo warranto is the only appropriate remedy for determining the proper holder of a public office, including who is the proper holder of the position of school board member.”Davis v. Chatman, 292 Mich.App. 603, 612, 808 N.W.2d 555 (2011) (citations omitted) (emphasis added). See also Layle v. Adjutant General, 384 Mich. 638, 641, 186 N.W.2d 559 (1971) (noting that quo warranto is the “exclusive remedy to try title to office finally and conclusively”). Nonetheless, because defendants' claim concerning the proper officeholder is subordinate to and inextricably tied to their other claim—namely, that the emergency manager lacked the authority to fill the vacant position in the first instance—we will overlook any procedural irregularities that might have been committed by defendants in this regard.

VI

In general, when a vacancy occurs on a board of education,⁸ the remaining board members possess the authority to fill the...