# Straus v. Governor

> Michigan Court of Appeals · September 10, 1998 · 230 Mich. App. 222

URL: https://www.frixlaw.com/law-library/cases/9691578

## Case

- **Full name:** Straus v. Governor
- **Court:** Michigan Court of Appeals
- **Decided:** September 10, 1998
- **Citations:** 230 Mich. App. 222; 583 N.W.2d 520
- **Precedential status:** Published
- **Opinion:** Concurring in part by Fitzgerald
- **Judges:** Fitzgerald, O'Connell, Whit-Beck, Whttbeck
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Fitzgerald, R J.
(concurring in part and dissenting in part.) I concur with the majority’s conclusion that the State Board of Education is within the executive *243 branch of government. I disagree, however, with the majority’s conclusion that Executive Order Nos. 1996-11 and 1996-12 do not infringe the board’s constitutional powers under Const 1963, art 8, § 3, and that the executive orders at issue are within the scope of the Governor’s authority under Const 1963, art 5, § 2.
FACTS
The facts in this matter are not in dispute. On December 19, 1996, the Governor issued Executive Order No. 1996-11, which transferred “ [a]ll of the administrative statutory powers, duties functions and responsibilities” of the State Board of Education “as administrative head of the Department of Education” to the superintendent of Public Instruction by a “Type II transfer.” In effect, Executive Order No. 1996-11 made the superintendent, rather than the board, the head of the Department of Education. Executive Order No. 1996-11 was to become effective March 10, 1997.
Also on December 19, 1996, the Governor issued Executive Order No. 1996-12, which purported to transfer “[a]ll of the administrative statutory powers, duties, functions, and responsibilities” of the board to the superintendent by a “Type II transfer.” Under Executive Order No. 1996-12, the board retained only “statutory policy making powers, duties, functions, and responsibilities.” Executive Order No. 1996-12 was to become effective July 1, 1997.
On March 3, 1997, plaintiffs instituted an action in the lower court to enjoin enforcement of Executive Order Nos. 1996-11 and 1996-12. Plaintiffs alleged that the executive orders violated Const 1963, art 8, § 3 on the ground that the constitution vested the board *244 with the authority to decide whether to exercise directly or to delegate the various statutory powers, responsibilities, and duties. Plaintiffs further alleged that art 8, § 3 limits any power of the Governor to transfer powers, responsibilities, and duties of the board.
On March 7, 1997, the lower court issued a preliminary injunction against implementation of Executive Order No. 1996-11, but denied a preliminary injunction against implementation of Executive Order No. 1996-12 on the ground that there was no immediate harm threatened by that executive order because it was not to go into effect until July 1, 1997. The parties thereafter filed cross-motions for summary disposition. On May 29, 1997, the lower court issued its oral opinion on these cross-motions. The lower court stated in part:
The 1963 constitution reflects a clear change from a popularly elected superintendent with general supervisor [sic] powers, and a State Board with limited supervisory powers to a State Board with general supervisory powers over all public education, except as to institutions of higher education granting baccalaureate degrees; and a superintendent appointed by the Board to act as the non-voting chairperson of the board and to be the principal executive officer of a State Department of Education with powers and duties provided by law.
The constitution impliably (sic) provides for the State Board to be the head of the Department of Education. To determine otherwise would reduce the State Board’s constitutional authority over education to a nullity.
*245 I would note that the statement in each of the executive orders at issue here that they do not affect the State Board’s constitutional role, would be comparable to the legislature passing a statute and adding a sentence at the end of the statute is not unconstitutional [sic]. You cannot determine the constitutional role of the State Board simply by adding a sentence in an executive order.
What this case is not about is whether the governor has the power to reorganize the executive branch of government. Housespeaker [sic] v Governor [ 443 Mich 560 ; 506 NW2d 190 (1993)] and Morris v Governor [(On Remand, After Remand), 214 Mich App 604 ; 543 NW2d 363 (1995)] speak clearly on that issue.
This case is about whether the governor can use his reorganization power in a way which deprives the popularly elected State Board of Education of some or all of its constitutional authority. Housespeaker [sic] and Morris do not address this issue. Those cases focused on the interplay between executive orders implementing reorganization of the executive branch and the legislature’s initial and subsequent power to reorganize the executive branch.
. . . [T]his Court is bound by the Supreme Court’s broad and expansive interpretation of the constitutional powers vested in a popularly elected State Board of Education. These executive orders represent an unconstitutional transfer of the State Board’s authority, power and responsibility to the state superintendent. The governor’s judicially recognized powers to reorganize the executive branch do not extend this far.
The June 16 order, presumably issued pursuant to this oral opinion, stated:
[A]s the Mich Const of 1963 provides for the State Board of Education to serve in a leadership and general supervision capacity over all public education in Michigan, the State Board of Education necessarily must serve as the head of the Department of Education, and the attempted *246 transfer of powers, responsibilities, and duties contained in Executive Orders 1996-11 and 1996-12 are contrary to and violate art 8, § 3 of Mich Const of 1963.
Because the lower court’s order was based on a grant of summary disposition, this Court’s review is de novo. Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650 ; 513 NW2d 441 (1994).
I. CONSTITUTIONAL CONSIDERATIONS
A. EXECUTIVE BRANCH REORGANIZATION: CONST 1963, ART 5, § 2
Const 1963, art 5, § 2 provides:
All executive and administrative offices, agencies and instrumentalities of the executive branch of state government and their respective functions, powers and duties, except for the office of governor and lieutenant governor and the governing bodies of institutions of higher education provided for in this constitution, shall be allocated by law among and within not more than 20 principal departments. They shall be grouped as far as practicable according to major purposes.
Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor.
Art 5, § 2 confers two distinct types of power on the Governor. The first is the power to “make changes in the organization of the executive branch.” The second *247 is the power to “make changes in the . . . assignment of functions among its units.” Both powers are at issue in this matter.
B. LEADERSHIP AND GENERAL SUPERVISION OVER PUBLIC EDUCATION: CONST 1963, ART 8, § 3.
1. LANGUAGE
Const 1963, art 8, § 3 provides in pertinent part:
Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith.
The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.
Art 8, § 3 therefore vests five functions in the board. They are:
(a) Exercising “[leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees.” 1
*248 (b) Serving as the general planning and coordinating body for all public education including higher education.
(c) Advising the Legislature as to the financial requirements in connection with public education.
(d) Appointing the superintendent.
(e) Determining the term of office of the superintendent.
At issue in this case is the first of these functions, providing “leadership and general supervision” over all public education.
2. HISTORY
As pointed out by plaintiffs, the Northwest Ordinance of 1787 provided that “[r]eligion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Northwest Ordinance of 1787, art 3. Consistent with this declaration, every Michigan constitution has provided for statewide supervision over public education.
Accordingly, Const 1835, art 10, § 1 provided for a Superintendent of Public Instruction, to be appointed by the Governor, “whose duties shall be prescribed by law.” Const 1850, art 8, § 1 provided for the popular election of a Superintendent of Public Instruction who, under art 13, § 1, “shall have the general supervision of public instruction, and his duties shall be prescribed by law.” Const 1850, art 13, § 9 also created an elected board charged with general supervision over the state normal school and other duties “prescribed by law.” Const 1908, art 11, § 2 also provided for the popular election of the Superintendent of Public Instruction, giving him the responsibility for *249 “general supervision of public instruction in the state”; Const 1908, art 11, § 6 also continued the limitation on the role of the elected board to supervision of the state normal college and the state normal schools and to such duties “prescribed by law.”
Const 1963, art 8, § 3 substantially changed the roles of the board and the superintendent. No longer were the functions of the board to be solely “prescribed by law”; rather, as outlined above, art 8, § 3 constitutionally recognized five functions of the board. Delegate George Romney, a member of the Education Committee, explained this change to the convention:
The third thing it does is to enlarge the functions of the board. The new board of education is given leadership and supervision over education other than colleges and universities. This means the elementary and secondary schools as well as other institutions of an educational character. The third thing it does is to give this board overall planning and coordinating responsibility for all of education. This we have not had. ... It gives this board the key position in recommending to the governor and the legislature all the steps taken to meet our educational needs in the state.
... In connection with the enlargement of the board’s activities, I think it is important to know that this enlargement of the board’s activities does not increase the authority of the board beyond that now granted in the present constitution to the superintendent of public instruction. The present constitution gives the superintendent of public instruction very broad authority over education, but he is not properly equipped either from the standpoint of staff and department or from the standpoint of ability to cover the full field to discharge that function. This contemplates the establishment of this board with these broad functions and certainly, this provides a more suitable means of dis *250 charging these important functions. [1 Official Record, Constitutional Convention 1961, p 1190.][ 2 ]
C. CONSTRUING CONST 19632 3
1. ORIGINAL INTENT, COMMON UNDERSTANDING, AND CONTEMPORANEOUS CONSTRUCTION
The Michigan Supreme Court has long held that the constitution must be interpreted in light of the original intent and understanding of its drafters. See, e.g., People v DeJonge (After Remand), 442 Mich 266, 274 ; 501 NW2d 127 (1993); Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342 ; 389 NW2d 430 (1986). The framers’ intent must be understood in conjunction with the intentions and understanding of the constitution held by its ratifiers. *251 DeJonge, supra at 274 . The intent of the framers may be determined, at least in part, through the use of the rule of “common understanding.” Traverse City School Dist v Attorney General, 384 Mich 390, 405 ; 185 NW2d 9 (1971). Justice Cooley in Cooley’s Const Lim 81, described this rule as follows:
A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. “For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.”[ 4 ]
Similarly, contemporaneous legislative4 5 and judicial 6 interpretations aid in ascertaining original intent and the common understanding.
*252 2. CIRCUMSTANCES AND PURPOSES
A second rule of constitutional construction requires consideration of the circumstances surrounding the adoption of a constitutional provision and the purposes sought to be accomplished. In Kearney v Bd of State Auditors, 189 Mich 666, 673 ; 155 NW 510 (1915), the Michigan Supreme Court stated:
In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished.[ 7 ]
As stated by the Michigan Supreme Court in House Speaker v Governor, 443 Mich 560, 581 ; 506 NW2d 190 (1993), the most instructive tool for discerning the circumstances surrounding the adoption of the provision is the floor debates in the Constitutional Convention record. However, the consideration of the debates is limited because:
They are individual expressions of concepts as the speakers perceive them (or make an effort to explain them). Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures. [Univ of Michigan Regents v Michigan, 395 Mich 52, 59-60 ; 235 NW2d 1 (1975).]
However, the Court also noted that these floor debates are particularly helpful “when we find in the debates a recurring thread of explanation binding *253 together the whole of a constitutional concept.” Id. at 60 .
3. AVOIDANCE OF CONSTITUTIONAL INVALIDITY
A third rule of constitutional construction requires the avoidance of an inteipretation that creates a constitutional invalidity. House Speaker, supra at 585 .
4. COMPLETE EFFECT AND PLAIN MEANING
This rule of interpretation contains two prongs. The first prong is to give effect to the entire section of the constitution. The second prong is to give the words of the constitution their usual and ordinary meaning. People v Bd of State Canvassers, 323 Mich 523, 529 ; 35 NW2d 669 (1949).
n. THE BOARD VERSUS THE SUPERINTENDENT AS THE “HEAD” OF THE DEPARTMENT OF EDUCATION
Executive Order No. 1996-11, in effect, made the superintendent, rather than the board, the head of the Department of Education. Plaintiffs argue that the constitutionally vested duty of the board to provide leadership and general supervision over all public education, necessarily requires the board to be the head of the Department of Education. The lower court agreed, finding that Const 1963 by implication provides for the board to be the head of the Department of Education.
Const 1963, art 8, § 3 does not explicitly state that the board is to be the head of the Department of Education. This language is, however, contained in § 301 of the Executive Organization Act of 1965, MCL 16.401; MSA 3.29(301). Both of the Governor’s powers under art 5, § 2 are implicated under Executive Order No. 1996-11. Empowering the superintendent as the *254 head of the Department of Education certainly constitutes a “change” in the organization of the executive branch. Similarly, to the extent that serving as the head of the Department of Education constitutes a “function,” Executive Order No. 1996-11 certainly transferred that function from the board to the superintendent. Thus, the question is whether the change in organization or transfer of functions accomplished by Executive Order No. 1996-11 impinged upon the board’s constitutional function of providing leadership and general supervision over all public education in Michigan. 8
I would hold that the board is constitutionally empowered, as part of its function of providing leadership and general supervision over all public education in the state, to head the Department of Education. To this end, the Legislature contemporaneously vested this function in the board in § 301 of the Executive Organization Act of 1965 and Lieutenant and Acting Governor Milliken did the same in Executive Order No. 1965-19. I regard these actions as signaling a contemporaneous understanding that the constitution requires such an outcome.
Likewise, contemporaneous judicial interpretations support this holding. In Welling v Livonia Bd of Ed, 382 Mich 620, 625 ; 171 NW2d 545 (1969), Justice Black, in a concurring opinion joined by Justices T. M. Kavanagh and T. G. Kavanagh, stated:
*255 Formerly the constitutional responsibility for such administration, with duties “prescribed by law,” devolved upon an elected superintendent of public instruction (Const 1908, art 11, § 2). By the Constitution of 1963, however, the framers proposed and the people adopted a new policy for administration of the system. Now the State board of education, unfettered by those qualifying words “prescribed by law” or “provided by law,” is armed and charged exclusively with the power and responsibility of administering the public school system which the legislature has set up and now maintains pursuant to section 2 of the eighth article. By section 3 of the same article, the board has been directed — not by the legislature but by the people — to lead and superintend the system and become, exclusively, the administrar tive policy-maker thereof. That specific directive having come from the people, the legislature may not by law interfere with its execution by the board. [Id. (emphasis supplied).]
Indeed, the general supervisory power over education formerly vested in the superintendent under the 1908 Constitution is, under Const 1963, reposed in the board. Under a Type II transfer as provided in Executive Order No. 1996-11, the board loses autonomous control over its functions. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 748-749 ; 330 NW2d 346 (1982); MCL 16.103(b); MSA 3.29(3)(b). The change proposed by Executive Order No. 1996-11 would return the running of public education to the system in place under the Constitution of 1908. If Executive Order No. 1996-11 is implemented, the superintendent will once again become the main voice in public education in Michigan. Such a change would essentially eliminate the transfer of power voted on by the people when they voted for the 1963 constitution and would render the transfer meaningless.
*256 m. THE TRANSFER OF STATUTORY “FUNCTIONS” FROM THE BOARD TO THE SUPERINTENDENT.
Executive Order No. 1996-12 transferred the “administrative statutory powers, duties, functions, and responsibilities” of the board set forth in some 139 different sections of the Michigan Compiled Laws from the board to the superintendent. Plaintiffs argue that these transfers directly affect the authority of the board to “lead and control.” The lower court agreed, finding that the executive orders represent an unconstitutional transfer of the board’s authority, power, and responsibility to the superintendent.
Here, the Governor’s powers under art 5, § 2 to make changes in the assignment of functions among the units of the executive branch are at issue. Clearly, the Governor has the authority under art 5, § 2 to transfer all the authority, powers, duties, functions, and responsibilities of a legislatively created principal department to a gubematorially created principal department. House Speaker, supra at 564 . I believe that the Governor has similar authority with respect to legislatively created boards and commissions. Here, however, the board is not a legislatively created entity. The board is a constitutionally created entity and, therefore, the Governor cannot exercise his art 5, § 2 powers to impair or restrict powers derived directly from the people under the constitution. Michigan Civil Rights Comm v Clark, 390 Mich 717 ; 212 NW2d 912 (1973). Although the functions sought to be transferred by Administrative Order No. 1996-12 were created by the Legislature through enactment of the relevant statutes, the statutes were enacted to vest functions in the board pursuant to the constitutional directive that the board have “leadership and control” *257 over public education. Thus, the transfer of functions derogates the constitutional powers of the board.
Simply put, although there appears to be no dispute that the Legislature has authority to repeal statutorily granted functions, the Governor does not have the authority to transfer such statutorily granted functions that were given to the board pursuant to the constitutional responsibility placed on the board to provide leadership and general supervision over all public education in Michigan. Although this holding does not avoid a constitutional invalidity, I would conclude that this holding is most consistent with the common understanding of art 5, § 2 and art 8, § 3 and is the interpretation that “reasonable minds, the great mass of the people themselves,” would give to these provisions.
In sum, I believe that Executive Order Nos. 1996-11 and 1996-12 infringe the board’s constitutional powers under Const 1963, art 8, § 3 and that the executive orders at issue are not within the scope of the Governor’s authority under Const 1963, art 5, § 2. I would affirm the lower court’s permanent injunction against implementation of these orders.
The exception relating to institutions of higher education granting baccalaureate degrees, not being relevant to this opinion, will not be further referred to in this opinion.
See also the comments of Delegate D. Hale Brake, emphasized by plaintiffs:
That being true, the governor being a politician, as a governor must be a politician, the other members of the board being professional educators, as they should be, my first premise is that the 8 members of the board should lay down the policy to be followed by this board. They should make the decisions. They know what the problems are. They should be the dominant force.
It seems to me that while Mr. Romney didn’t say so that one of the principal objectives in the set up that has been suggested to us here is that of moving the department of education a little bit further away from the political arena. The board is elective. They pick the superintendent of public instruction instead of having him elected by the people as in the past. Then the committee turns right around and comes right straight back toward the political arena by putting the chief politician of the state on the board.
My first premise is that the board ought to run this show. [1 Official Record, Constitutional Convention 1961, p 1193 (emphasis supplied).]
It has been said that in construing a constitution, the technical rules of statutory construction do not apply. McCulloch v Maryland, 17 US (4 Wheat) 316, 407; 4 L Ed 579 (1819); Traverse City School Dist v Attorney General, 384 Mich 390, 405 ; 185 NW2d 9 (1971).
Quoted with approval in Council of Organizations v Governor, 455 Mich 557, 569 ; 566 NW2d 208 (1997); Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745 ; 330 NW2d 346 (1982); Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 405 ; 292 NW2d 442 (1980); Traverse City School Dist, supra at 405;
See Harmelin v Michigan, 501 US 957, 980 ; 111 S Ct 2680 ; 115 L Ed 2d 836 (1991), in which Mr. Justice Scalia stated that it was necessary to examine “[t]he actions of the First Congress, which are of course persuasive evidence of what the Constitution means.”
See Advisory Opinion Re: Constitutionality of 1972 PA 294 , 389 Mich 441, 470 ; 208 NW2d 469 (1973), in which the Michigan Supreme Court stated:
A second consideration in determining the meaning of constitutional language is the analysis of precedent. How have the courts interpreted this language? In pursuing precedent, those cases decided at a time proximate to the ratification of the constitution *252 are important in that they better reflect the meaning of the language of the constitution at the time it was written.
See Soap & Detergent Ass’n, n 4, supra at 745 , and Traverse City School Dist, supra at 405.
Plaintiffs do not argue, and the lower court did not find, that Executive Order No. 1996-11 impinged upon the board’s other four delineated functions under Const 1963, art 8, § 3 (i.e., serving as the general planning and coordinating body for all public education, including higher education; advising the Legislature with regard to the financial requirements in connection therewith; appointing the superintendent; and determining the term of office of the superintendent).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9691578. Public record. Not legal advice.