Judicial Attorneys Ass'n v. State ( 1999 )

597 N.W.2d 113 (1999) 460 Mich. 590

JUDICIAL ATTORNEYS ASSOCIATION, Plaintiff-Appellees, and
Government Administrators Association, Plaintiffs-Appellees, and Cross-Appellants,
v.
STATE of Michigan, Governor, Attorney General, Defendants-Appellants, and
County of Wayne and Wayne County Board of Commissioners, Defendants and Cross Plaintiffs.
Mayor of the City of Detroit, and the City of Detroit, Plaintiffs-Appellants,
v.
State of Michigan, and the Michigan Department of Management and Budget, Defendants-Appellees.

Docket Nos. 111785, 111786, Calendar Nos. 9, 5.

Supreme Court of Michigan.

Argued October 7, 1998. Reargued May 5, 1999. Decided July 20, 1999.

City of Detroit Law Department (by Phyllis A. James, Corporation Counsel, Joanne D. Stafford, Chief Assistant Corporation Counsel, and Dennis A. Mazurek, Supervising Assistant Corporation Counsel), Detroit; Dickinson, Wright, P.L.L.C. (by Peter H. Ellsworth, Joseph C. Marshall, III, and Jeffery V. Stuckey), Lansing, for the plaintiffs-appellants City of Detroit.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Deborah Anne Devine and Matthew H. Rick, Assistant Attorneys General, Lansing, for defendants-appellees state of Michigan.

Edward Ewell, J., Wayne County Corporation Counsel, Detroit; Fink Zausmer, P.C. (by David H. Fink, Gary K. August, Ruben Acosta, and Amy M. Sitner), Farmington Hills, for defendants/cross-plaintiffs/appellants, Wayne County and Wayne County Board of Commissioners.

Opinion

TAYLOR, J.

In these appeals, the city of Detroit and Wayne County challenge certain provisions of 1996 P.A. 374, a court reorganization act, on the basis that they violate Const.1963, art. 9, § 29 (the Headlee Amendment). We conclude that Act 374 neither imposes new activities nor increases the level of activities on local units. Further, because in 1978 and under Act 374, the state's only contribution to the activity at issue relates to the payment of judicial salaries, these matters are not subject to an analysis to determine whether Act 374 decreases the state's proportionate share of the necessary costs of the activities it requires of these two local units. We accordingly affirm in part and vacate in part the Court of Appeals opinion.

I

According to its title, Act 374 is designed to revise the organization and jurisdiction of the courts. It is an effort to reorganize the state trial courts and to provide a uniform funding mechanism. For purposes of these appeals, relevant features of Act 374 are that it abolishes Detroit Recorder's Court and merges it with the Third Circuit Court and that it makes the funding units' responsibilities for the funding of the Third Circuit and the 36th District Court consistent with the responsibilities of funding units of all other circuits and districts. Sections 9931, 8271, and 591. Specifically, Act 374 requires Detroit to fund 36th District Court and Wayne County to fund the newly reconstituted Third Circuit Court. Detroit and Wayne County contend that Act 374's imposition of these responsibilities violates the Headlee Amendment because it places funding obligations on them that they were not previously required to shoulder.

In both cases, the trial court held that Act 374 violated the Headlee Amendment. The cases were consolidated on appeal and the Court of Appeals reversed, concluding that Act 374 did not violate the Headlee Amendment. 228 Mich.App. 386, 579 N.W.2d 378 (1998). We granted leave to consider whether Act 374 violates the Headlee Amendment.^[1] 457 Mich. 884, 586 N.W.2d 925 (1998).

The relevant Headlee provision, Const.1963, art. 9, § 29, states:

The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18.

Drawing from this Court's previous decisions, the Court of Appeals aptly articulated the parameters of § 29 at 396-398, 579 N.W.2d 378:

The first sentence of this provision prohibits reduction of the state proportion of necessary costs with respect to the continuation of state-mandated activities or services. The second sentence requires the state to fund any additional necessary costs of newly mandated activities or services and increases in the level of such activities or services from the 1978 base year. This language does not guarantee that local units' spending levels will not increase from the 1978 level. Rather, the Headlee Amendment only guarantees that the state will not reduce its proportion of the necessary costs of existing activities or services, and that the state will pay entirely for necessary costs when it mandates new activities or services or to the extent the state increases the level of an existing activity or service. Increased levels of local spending attributable to other causes, e.g., inflation or the greater utilization of a program by the public, are not addressed by this provision of the Headlee Amendment. The Michigan Supreme Court has interpreted § 29 to "`reflect an effort on the part of the voters to forestall any attempt by the Legislature to shift [fiscal] responsibilities to the local government....'" Schmidt v. Dep't of Ed., 441 Mich. 236, 250, 490 N.W.2d 584 (1992), quoting Durant v. State Bd. of Ed., 424 Mich. 364, 379, 381 N.W.2d 662 (1985). The two sentences of § 29 "must be read together `[b]ecause they were aimed at alleviation of two possible manifestations of the same voter concern....'" Schmidt, supra at 251 [490 N.W.2d 584], quoting Durant, supra at 379 [566 N.W.2d 272]. To make the necessary comparison between state aid provided during the Headlee Amendment base year (1978) and a later year at issue, the Schmidt Court considered, at length, three possible formulations: the "state-to-state" formulation, the "local-to-local" formulation, and the "state-to-local" formulation. It ultimately adopted the "state-to-local" formulation. This method involves comparing "the ratio of total state aid for a required activity to total necessary costs for the required activity in the base year... with the ratio of state aid to an individual local unit of government for the activity to the necessary costs of that unit for the activity in the year of challenged funding." Schmidt, supra at 249 [490 N.W.2d 584]. Under this formulation, "[t]he state is obligated to afford each unit providing the activity or service the same proportion of funding that the state provided on a statewide basis in the year that the Headlee Amendment was ratified." Id. at 250 [490 N.W.2d 584]; see also Durant v. Michigan, 456 Mich. 175, 187, 566 N.W.2d 272 (1997).

In Schmidt, supra at 252, 490 N.W.2d 584, this Court discussed the voters' intent in ratifying the Headlee Amendment:

The state-to-local formulation satisfies the voters' intent in enacting the Headlee Amendment. When the voters ratified the Headlee Amendment, they sought to ensure that when the state mandates a program, funds are provided to the local government to pay for that program. The state-to-local method of calculating the state's obligation achieves the voters' desire to secure a minimum level of funding for the local government unit for mandatory programs and to link the mandating of programs with the necessity for taxing to pay for those programs. This approach also creates the appropriate balance between the state's desire for discretion in allocating funds and the desire of the local units of government for minimum funding. The state-to-local ratio provides a uniform allocation of resources for mandatory programs. The state is free to supplement that minimum funding on the basis of its perception of need, but the local government is guaranteed its proportionate share.

After reiterating these principles, the Court of Appeals proceeded to make a Headlee Amendment analysis of Act 374. The Court of Appeals concluded that "trial court operations" was the relevant activity or service under § 29. 228 Mich.App. at 401-402, 579 N.W.2d 378. It found that Act 374 requires counties to fund the operation of the circuit courts, district units to fund the operation of district courts, and the state to fully fund circuit and district court judicial salaries. Id. at 402-403, 579 N.W.2d 378. It found that in 1978, state law mandated that local units fund and operate circuit and district courts and that the state subsidized a portion of judicial salaries. Id. at 405, 579 N.W.2d 378. It then concluded that Act 374 neither mandated new activities for local units nor increased the level of any activity required of local units. Id. Finally, it concluded that, despite incomplete information to perform the relevant equations, it was able to determine that Act 374 did not decrease the state-financed proportion of necessary costs of trial court operations to either Detroit or Wayne County from that provided on a statewide basis in 1978. Id. at 407-408, 579 N.W.2d 378.

II

On appeal here, the parties do not dispute the Court of Appeals findings regarding what Act 374 requires of local units and what state law required of local units in 1978 in terms of trial court operations. Rather, they dispute whether the Court of Appeals correctly identified the relevant activity under § 29 as "trial court operations." The parties' briefs and arguments before this Court suggest that these appeals turn on the how the relevant activity is defined.

A

However, there is an underlying issue that neither the parties nor the Court of Appeals explicitly addressed: what the proper frame of reference is for deciding whether a mandated activity constitutes a "new activity" or "increase in the level of any activity." Resolution of this issue is important because § 29 distinguishes between the continuation of an activity mandated in 1978 and the imposition of a new activity or increase in the level of an activity. Section 29 prohibits the state from reducing its proportion of the necessary costs of existing activities while it requires the state to pay the increased necessary costs in full when it mandates new activities or mandates activities at a increased level. Specifically, the underlying question is: does § 29 address mandated activities that are new or required at an increased level from the perspective of a particular local unit or from the perspective of local units collectively? That is, is the second sentence of § 29 triggered by any mandate that requires a particular local unit to perform an activity that is new to it (or at an increased level) or only by a mandate that requires local units to perform an activity that the state did not previously require local units to perform (or at an increased level from that previously required of local units)? For ease of reference we will refer to the first option as "the broad interpretation" (an activity is "new" under § 29 merely if it is new to a particular unit) and the second option as "the narrow interpretation" (an activity is "new" under § 29 only if it is new to local units collectively, i.e., an activity the state did not previously require local units to perform).

In Schmidt, 441 Mich. at 253, 490 N.W.2d 584, in the context of discussing the strengths of the state-to-local formulation,^[2] we offered two examples that shed light on this question:

For example, if a district in existence in the base year was not providing a mandatory program when the Headlee Amendment took effect, this method would entitle the district to the same proportionate share as every other local unit that previously provided the programs. This formulation also simplifies funding where new districts are created by consolidation, or reorganization, or otherwise. If the newly organized district adds a program that was "mandated" when the Headlee Amendment took effect, any district providing the program is then entitled to the same proportionate share as every other unit providing the activity or service. Thus, the anomaly of funding at either zero or one hundred percent (pursuant to the second sentence of § 29) is avoided. New districts, like previously existing districts, would be entitled to the same proportionate share of state funding.

In both these examples, from the perspective of the particular unit, it might be argued that the state mandated a "new activity." But in both examples, this Court concluded that the particular local unit would not be entitled to one hundred percent funding as required under the second sentence of § 29 when the state imposes a "new activity." Rather, we concluded that these local units would only be entitled to the same proportionate share of state funding that other local units received for that activity. We concluded that these examples involved the simple continuation of an activity that the state required of local units in 1978, and did not impose on local units a new activity (or an increased level of activity), even though these particular local units had not previously performed these activities.^[3] In short, we adopted the narrow interpretation. Under the narrow interpretation of § 29, the relevant frame of reference is whether a mandated activity is new (or at an increased level) to local units collectively. We thus concluded that the second sentence of § 29 is only triggered when the state mandates a new activity by requiring local units to perform an activity that the state did not require local units to perform in 1978 or when it increases the level of an activity from the level that it required local units to perform in 1978.^[4] Two corollaries flow from this conclusion: 1) a requirement that a particular local unit fund an activity that was locally funded in 1978 would not constitute a "new activity" under § 29, regardless of whether the particular local unit previously funded this activity; and 2) a requirement that a particular local unit fund an activity at a level that was locally funded in 1978 would not constitute an "increase" in the level of activity, regardless of whether the particular unit previously funded the activity at this level.

We acknowledge that these conclusions are drawn from examples in Schmidt. Examples in an opinion are, by definition, dicta. However, these examples are consistent with both the language of § 29 and this Court's holding in Schmidt.

The second sentence of § 29 states in pertinent part:

A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. [Emphasis added.]

The use of the plural "units" in the first phrase of this sentence indicates that the state is not to require activities that are new or at an increased level from the perspective of local units collectively. Of course, the use of the singular "the unit" in the second phrase of this sentence indicates that the proper remedy for the imposition of such a new or increased activity is to pay the increased necessary costs to each particular unit.^[5] But the initial question whether a statute mandates a new activity or an increased level of activity is to be answered by considering local units collectively, rather than a particular local unit, according to the plain meaning of the word "units" in the first phrase of the second sentence of § 29. Thus, this Court's analysis of the two examples in Schmidt is consistent with the language of § 29.

Moreover, the principles underlying these examples clearly follow from our holding in Schmidt that "the voters intended neither to freeze legislative discretion nor to permit state government full discretion in its allocation of support for mandated activities or services" and that only the state-to-local formulation "gives full effect to the language and advances the purposes that voters sought to achieve in ratifying the Headlee Amendment." Id. at 242, 249-250, 490 N.W.2d 584. Specifically, as noted above, we held that the state-to-local formulation

creates the appropriate balance between the state's desire for discretion in allocating funds and the desire of the local units of government for minimum funding. The state-to-local ratio provides a uniform allocation of resources for mandatory programs. [Id. at 252, 490 N.W.2d 584.]

Assessment of the broad and narrow interpretations of "new activity" on the basis of these criteria—1) balancing state discretion in allocating funds and minimum funding guarantees for local units, and 2) uniform allocation of resources—demonstrates that only the narrow interpretation meets these dual purposes of § 29.

First, we consider the effect of these competing interpretations on the goal of not freezing legislative discretion. In Schmidt, we discussed several ways that the Headlee Amendment limits the state's discretion:

First, it expresses the desire to prohibit the state from requiring new or expanded activities without fully funding them.... Second, the language evidences a purpose of preventing the state from reducing "the proportion of state spending in the form of aid to local governments." ... Finally, the language embodies an antishifting purpose that prevents the state from shifting the "tax burden to local government." [Id. at 254, 490 N.W.2d 584, quoting Const.1963, art. 9, § 25.]

We reiterated that the two sentences of § 29 must be read together and that they "`clearly reflect an effort on the part of the voters to forestall any attempt by the Legislature to shift responsibility for services to the local government, once its revenues were limited by the Headlee Amendment, in order to save the money it would have had to use to provide the services itself.'" Id. at 257, 490 N.W.2d 584, quoting Durant, supra, 424 Mich. at 379, 381 N.W.2d 662. Similarly, in Livingston Co. v. Dep't of Management & Budget, 430 Mich. 635, 644, 425 N.W.2d 65 (1988), we stated:

[The Headlee Amendment's overall] plan is quite obvious. Having placed a limit on state spending, it was necessary to keep the state from creating loopholes either by shifting more programs to units of local government without the funds to carry them out, or by reducing the state's proportion of spending for "required" programs in effect at the time the Headlee Amendment was ratified.

We further suggested that legislative changes that do not create such loopholes do not implicate the Headlee Amendment. For example, we held, at 645, 425 N.W.2d 65:

While the state can, and sometimes does, mandate higher standards, benefits, and so forth, it does not necessarily profit from increasing these standards, and, therefore, the kind of escape hatch for the state that the Headlee Amendment was intended to head off is not created.

These holdings indicate that § 29 primarily addresses shifts from the state to local units. With respect to shifts of responsibility among local units, § 29 only guarantees that each local unit will receive the state-financed proportion of funding provided on a statewide basis in 1978.

The Headlee Amendment simply does not speak to all potential shortcomings of funding statutes.^[6] To the extent that the Headlee Amendment does not address perceived inequities of statutes, parties may seek relief through the political process.^[7]

These authorities indicate that the intended limitations of § 29 on the state's discretion do not include requiring the state to fully fund an activity that was locally funded in 1978, but is later imposed on a different local unit. The broad interpretation would result in the imposition of such a requirement and would therefore limit the Legislature's discretion beyond that intended by the Headlee Amendment. The narrow interpretation is consistent with § 29's focus on shifts from the state to local units and does not similarly hamper the Legislature's discretion in ways not envisioned by the Headlee Amendment.

The intent to assure minimum funding at 1978 levels would be met by either interpretation. Under the narrow interpretation, a local unit required to assume funding for an activity it previously did not fund, but which local units were required to fund in 1978, would receive the state-financed proportion provided in 1978. Under the broad interpretation, a local unit required to assume funding for an activity that it previously did not fund would receive one hundred percent state funding, even though the activity was locally funded in 1978 and other local units funding the same activity are guaranteed only the state-financed proportion provided in 1978. Minimum funding is guaranteed under both these readings of § 29; however, the broad interpretation is obviously more advantageous to the particular local unit because it would go beyond providing minimum funding.

In light of these observations, we next consider the intended balance between the dual goals of a) preserving the Legislature's ability to enact necessary and desirable legislation in response to changing times and conditions and b) guaranteeing a predictable level of minimum funding. The broad interpretation defeats the first goal by placing limitations on legislative discretion beyond those imposed by § 29, and distorts the second goal by providing in some cases full state funding where § 29 guarantees only the state-financed proportion provided in 1978. The broad interpretation would therefore undermine the intended balance of these dual goals. The narrow interpretation, in contrast, is consistent with both § 29's focus on shifts from the state to local units and § 29's guarantee of minimum funding. Therefore, only the narrow interpretation of § 29 honors the intended balance between legislative discretion and guaranteed minimum funding.

Further, the broad interpretation clearly undermines the intent to provide a uniform allocation of resources. Under the broad interpretation, two local units providing the same activity could receive widely different amounts of state funding depending on whether the unit performed the activity in 1978 (in which case it would receive the state-financed proportion provided in 1978) or was only later assigned the activity (in which case it would receive one hundred percent state funding). The narrow interpretation of § 29 would not create such friction-producing funding anomalies. Under the narrow interpretation, with respect to activities that the state required local units to perform in 1978, any local unit required to perform that activity is entitled to the same state proportion of funding that was provided in 1978. Thus, only the narrow interpretation would further the goal of uniform allocation of state resources.

For these reasons, we hereby adopt the narrow interpretation. We hold that the second sentence of § 29 is only triggered by a mandate that requires local units to perform an activity that the state previously did not require local units to perform or at an increased level from that previously required of local units.

B

In applying this holding, we again note that the parties do not dispute the Court of Appeals findings regarding what Act 374 requires of local units and what state law required of local units in 1978 in terms of trial court operations. We agree with the Court of Appeals analysis of these issues and hereby adopt the following portion of its opinion:

Act 374, § 9931 abolishes the Recorder's Court 12 and merges it with the Third Circuit Court effective October 1, 1997. Act 374, § 591 requires the county board of commissioners in each county to annually appropriate funds for the operation of the circuit court in that county. Act 374, § 555 requires the state to pay the salary of circuit judges and to reimburse the county if it pays an additional salary within prescribed limitations. Act 374, § 8271 requires the governing body of each district funding unit to annually appropriate funds for the operation of the district court in that district. Act 374, § 8104 also requires district funding units to finance and operate the district courts. Act 374, § 8202 requires the state to pay the salary of district judges and to reimburse the local unit if it pays an additional salary within prescribed limitations. Accordingly, under Act 374, the state mandates that counties pay for the operation of the circuit courts, that district units pay for the operation of the district courts, and that the state pay circuit court and district court judicial salaries.

12 The Recorder's Court is a court unique to Detroit. It is "a court of limited jurisdiction and has jurisdiction for the prosecution of crimes committed within the City of Detroit only." People v. Young (On Remand), 220 Mich.App. 420, 433, 559 N.W.2d 670 (1996). In every other county in Michigan, crimes committed within a city are prosecuted in the circuit court.

A Headlee Amendment analysis next requires that we compare this with the operation of trial courts in 1978—the Headlee Amendment base year. In Grand Traverse Co. v. Michigan, 450 Mich. 457, 473-474, 538 N.W.2d 1 (1995), the Michigan Supreme Court stated:

"Despite the fact that the courts have always been regarded as part of state government, they have operated historically on local funds and resources. An unbroken line of cases stretching back 130 years recognizes the practice of imposing the costs of operating the courts on local funding units."

It stated, "[t]he widespread acceptance of the principle of funding most trial court expenses through local funding units has continued until today." Id. at 476 [538 N.W.2d 1]. See also Wayne Circuit Judges v. Wayne Co., 15 Mich.App. 713, 722, n. 10, 167 N.W.2d 337 (1969), rev'd 383 Mich. 10, 24, 172 N.W.2d 436 (1969) ("the county is the proper arm of state government upon which the necessary expense of operating the circuit court devolves"), opinion of the Court superseded and the opinion by Dethmers and Black adopted as the opinion of the Court on rehearing, and the opinion of the Court of Appeals affirmed [on rehearing] 386 Mich. 1, 190 N.W.2d 228 (1971). In Frederick v. Presque Isle Co. Circuit Judge, 439 Mich. 1, 6, 476 N.W.2d 142 (1991), the Court stated:

"Traditionally, the county has been the primary unit in directing Michigan's criminal justice system.

"[The Frederick Court cites several examples of statutes requiring local funding for trial court activities.]"

* * *

In Employees & Judge of the Second Judicial Dist. Court v. Hillsdale Co., 423 Mich. 705, 713, 378 N.W.2d 744 (1985), the Court stated that MCL § 600.9947; MSA § 27A.9947, added by 1980 PA 438, was an attempt by the state to eliminate local funding of state judicial functions. Second Dist. Court thus clearly recognizes that, before that 1980 act, the state effectively mandated local funding of trial court operations.

Before Act 374 there was no particular statute that explicitly stated that local units were responsible for funding trial courts. Rather, as set forth above, a number of statutes addressing particular aspects of trial court operations clearly implied that local units were to fund trial courts. The mosaic of these various statutes, and the strong tradition of local funding of trial courts recognized in case law, demonstrates that state law effectively mandated that local units fund trial courts in 1978.13. Accordingly, we conclude that in 1978 state law mandated that local units fund trial courts.

The state contends that complete financial records from the pre-Headlee Amendment period are not available; however, it is apparently undisputed that the state's only contribution to trial court operations in 1978 was with respect to a portion of judicial salaries. Accordingly, in 1978 local units financed and operated the circuit and district courts and the state subsidized a portion of judicial salaries. [228 Mich.App. at 402-405, 579 N.W.2d 378.]

These findings—that, both in 1978 and under Act 374, local units were required to fund trial court operations as a whole with the exception of judicial salaries^[8]—compel the conclusion that Act 374 neither mandates new activities nor increases the level of activities relating to trial court operations. Act 374 does not require any new or increased activities of local units. Rather, it simply requires the two units at issue to do what the state required every local unit to do in 1978: fund the local district or circuit court, except for the portion of judicial salaries paid by the state. The conclusion that Act 374 does not mandate any new or increased activities holds regardless of whether we define the relevant activity as "trial court operations" or by more specific categories because local units funded trial court operations as a whole (with the exception of judicial salaries) in 1978. That is, even if we were to separately consider the more specific activities included in "trial court operations," each activity required under Act 374 was required of local units in 1978. Therefore, Act 374's imposition of such activities on local units would not constitute a new activity or increase in activity required of local units, even if a particular local unit had not previously performed it. Accordingly, for purposes of applying the second sentence of § 29 we need not decide whether the Court of Appeals properly identified the relevant activity as "trial court operations."

III

Ordinarily, for purposes of the first sentence of § 29—determining whether the state has reduced the state-financed proportion of the necessary costs of any existing state-mandated activity—it would be necessary to identify the relevant activity. Here, however, it is undisputed that, in 1978 and under Act 374, the state's only contribution to the activity at issue relates to payment of judicial salaries. The final sentence of § 29 states that it "shall not apply to costs incurred pursuant to Article VI, Section 18." Const.1963, art. 6, § 18 governs judicial salaries. Therefore, under the plain language of § 29's final sentence, the state's only contribution to the activity at issue, however defined, is not subject to an analysis under the first sentence of § 29 to determine if Act 374 decreases the state's proportionate share of the necessary costs of the activities that it mandates. Thus, it was unnecessary for the Court of Appeals to reach this issue and is unnecessary for us to do so either. We accordingly vacate the Court of Appeals analysis of this issue and need not define the relevant activity here.

Conclusion

For these reasons, we hold that Act 374 neither mandates a new activity nor increases the level of an activity on Detroit or Wayne County and that it is not subject to an analysis of whether it decreases the state-financed proportion of the necessary costs of an activity with respect to these two units. Accordingly, we affirm in part and vacate in part the Court of Appeals decision.

WEAVER, C.J., and CORRIGAN and YOUNG, JJ., concurred with TAYLOR, J.

MICHAEL F. CAVANAGH, J. (dissenting).

The centerpiece of the majority's analysis is two examples from Schmidt v. Dep't of Ed., 441 Mich. 236, 253, 490 N.W.2d 584 (1992), a case that addressed the first sentence of Const.1963, art. 9, § 29.^[1] While acknowledging that the Schmidt examples are, "by definition, dicta," op. at 117, the majority believes that they are representative of both the language and purpose of § 29. Because the language of § 29, its underlying purpose, and our opinion in Schmidt all belie the majority's contentions, I respectfully dissent. I would hold that the Headlee Amendment obligations contained in the second sentence of § 29 run from the state to each unit of local government individually. I would also hold that the Court of Appeals erred in defining the relevant activity or service at issue in this case as "trial court operations."

I. The Language of Const.1963, art. 9, § 29

The starting point for any constitutional analysis is the language of the constitution itself. The primary rule of constitutional construction is that of the "common understanding" of the voters approving the constitution. The rule has been described by Justice Cooley 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.'" [Traverse City School Dist. v. Attorney General, 384 Mich. 390, 405, 185 N.W.2d 9 (1971), quoting Cooley, Constitutional Limitations, p. 81 (emphasis added).]

Moreover, the Court must give force to all the words used in a constitutional provision. "Neither the legislature, nor this Court, has any right to amend or change a provision in the Constitution." Pillon v. Attorney General, 345 Mich. 536, 547, 77 N.W.2d 257 (1956). Thus, the Court must avoid any construction that would invalidate portions of the language used in the provision under review.

Unfortunately, the majority has strayed from these time honored rules of construction. The majority's conclusion that "the relevant frame of reference [under the second sentence of § 29] is whether a mandated activity is new (or at an increased level) to local units collectively," op. at 117, is contradicted by the specific language of the second sentence:^[2]

A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. [Emphasis added.]

The italicized portion of this sentence explicitly refers to local unit in the singular. This use of the singular "suggests that the section was intended to impose an obligation on the state vis-a-vis each unit of local government with respect to mandated activities or services as well as new requirements." Schmidt, 441 Mich. at 251, 490 N.W.2d 584 (emphasis added). The Court addressed this very issue in Schmidt:

The first sentence [of art. 9, § 29] focuses on a single proportionate obligation by the state measured during the base year, i.e., the year that the Headlee Amendment became effective. The only language in § 29 that speaks directly to payment occurs in the second sentence, which requires a "state appropriation... to pay the unit of Local Government for any necessary increased costs." (Emphasis added.) This language references a singular unit and a singular governmental body. It suggests that the framers intended, and the voters understood, that the state's obligation ran to each unit of local government. [Id.][^[3]]

The majority believes that "[t]he use of the plural `units' in the first phrase of this sentence indicates that the state is not to require activities that are new or at an increased level from the perspective of local units collectively." Op. at 118. However, such a reading of § 29 does not comport with the common understanding of the terms selected by the drafters and ratified by the public. To reiterate, the second sentence of § 29 states:

A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. [Emphasis added.]

Read in the context of the entire sentence, the use of the plural "units" in the first part of the sentence is merely a recognition that there are a variety of different units of local government.^[4] Unlike the singular state government, there are different units of local government, including those governing cities, counties, townships, school districts, and the like. Indeed, to read the reference to "units" any other way would require one to effectively ignore other language appearing in the sentence.

Section 29 requires in part that the state pay for "an increase in the level of any activity or service beyond that required by existing law...." However, the majority's interpretation effectively eliminates the verbiage. Under its analysis, it does not seem possible for a locality to recover for an "increased" obligation foisted on it by the state. If the required activity has already been undertaken by the collective local governments in the past, "§ 29 only guarantees that each local unit will receive the state-financed proportion of funding provided on a statewide basis in 1978." Op. at 119. Therefore, even if the city of Detroit's expenses increased tenfold because of the court reorganization plan, the city would not be able to recover "for any necessary increased costs" apart from the percentage the state was already paying before 1978. In other words, there is never an "increase" in a activity; rather, there is only a change in the proportionate share required by the state. This approach is simply incompatible with the specific language of § 29, and it violates the rule of constitutional construction that we must give force to the actual language of the constitutional provision.^[5]

In sum, I believe the majority's interpretation of the second sentence of § 29 strays from the actual text of the sentence. Its interpretation gives the word "units" exactly the "dark or abstruse meaning" that Justice Cooley warned against. Moreover, it seems to ignore the language pertaining to an "increase" in a required activity or service.

II. The Purpose of 1963, art. 9, § 29

Not only do I find the majority's interpretation contrary to the language of § 29, I also find it contrary to the purposes underlying the Headlee Amendment. The Court has previously recognized that the Headlee Amendment was proposed as part of a nationwide "taxpayer revolt." Durant v. State Bd. of Ed., 424 Mich. 364, 378, 381 N.W.2d 662 (1985). The amendment was intended to prohibit unfunded mandates so that the state could not require new or expanded activities of local units without fully funding them. Id. at 391, 381 N.W.2d 662. In order to effectuate this intent, § 29 was designed to prohibit the state from shifting the costs of activities or services required by state law to various units of local government:

Having placed a limit on state spending, it was necessary to keep the state from creating loopholes either by shifting more programs to units of local government without the funds to carry them out, or by reducing the state's proportion of spending for "required" programs in effect at the time the Headlee Amendment was ratified. [Livingston Co. v. Dep't of Management & Budget, 430 Mich. 635, 644, 425 N.W.2d 65 (1988).][^[6]]

Unfortunately, however, the majority's analysis would allow the state to shift certain activities or services to local governments with no financial consequences. As long as some unit of local government undertook a particular activity or service in 1978, then the state would be able to require any or all other units of local government to undertake the task without providing any additional funding for this new mandate. For example, the state could require that every locality establish a separate "Recorder's Court" for criminal prosecutions. Although this separate recorder's court would be new to every locality except the city of Detroit, the majority's analysis would not require the state to fund any of these new courts, since a single recorder's court existed in the city of Detroit in 1978. Allowing the state to foist such an unfunded mandate on localities is, without question, diametrically opposed to the purpose behind Headlee.

Even so, the majority argues that it is reading § 29 in a way that is consistent with the purposes of Headlee. In particular, it argues that its interpretation meets the underlying purposes of "(1) balancing state discretion in allocating funds and minimum funding guarantees for local units, and (2) uniform allocation of resources...." Op. at 119. Assuming for sake of argument that these are the most significant purposes underlying § 29, I believe that the majority's approach gives wide latitude to the state to require localities to undertake services that they have never undertaken before.^[7] As mentioned above, as long as some localities were undertaking the service in 1978, the state can require other localities to undertake the same function without providing funding for the new activity. More importantly, it allows the state to shift responsibilities between different units of local government so that resources are not distributed uniformly. For example, the state could shift a variety of activities formerly performed by several different units of local government to a single unit of local government, while only paying for a portion of the new cost to the locality. The single unit of government would have to shoulder the financial burden of all these new activities while the other units of local government would be alleviated of the financial burden accompanying the activity. In other words, some units of local government would receive a windfall at the expense of another.

For these reasons, I cannot accept the majority's reasoning. I believe that the state's obligations under the second sentence of § 29 flow to each individual unit of local government and not local governments in the collective. Therefore, I would hold that, if the state should mandate a program shift from one local unit to another, that program is "new" to the unit that must now provide the activity. The local unit is entitled to an appropriation for any necessary increased costs as a result of the switch. Similarly, if the state should mandate a program shift from one local unit to another that requires the unit to provide a greater level of an activity than the unit already provides, the unit is likewise entitled to a state appropriation for any necessary increased costs resulting from the program shift.

Does this impose significant restrictions on state government? Does this, time and again, thwart the state's ability to enact good public policy? The obvious answer to each question is "yes." That, however, is the result, intended or unintended, of the Headlee Amendment that Michigan voters adopted.

III. The Relevant Activity or Service

Examining Act 374 from the standpoint of the individual units of local government involved in this case, I believe that the court reorganization mandated by the act does violate the Headlee Amendment. While I believe that the Court of Appeals properly viewed this case from the perspective of the individual units of local government rather than local governments in the collective, I believe it erred in defining the relevant activity or service in this case as "trial court operations." Rather, I believe the relevant activities or services in this case are "former Common Pleas Court functions" and "former Recorder's Court functions."^[8]

The Court of Appeals holding is aptly summarized by the majority:

The Court of Appeals concluded that "trial court operations" was the relevant activity or service under § 29. [228 Mich.App. 386] 401-402 [579 N.W.2d 378 (1998) ]. It found that Act 374 requires counties to fund the operation of the circuit courts, district units to fund the operation of district courts, and the state to fully fund circuit and district court judicial salaries. Id. at 402-403 [579 N.W.2d 378]. It found that in 1978, state law mandated that local units fund and operate circuit and district courts and that the state subsidized a portion of judicial salaries. Id. at 405 [579 N.W.2d 378]. It then concluded that Act 374 neither mandated new activities for local units nor increased the level of any activity required of local units. Id. Finally, it concluded that, despite incomplete information to perform the relevant equations, it was able to determine that Act 374 did not decrease the state-financed proportion of necessary costs of trial court operations to either Detroit or Wayne County from that provided on a statewide basis in 1978. Id. at 407-408 [579 N.W.2d 378]. [Op. at 116.]

However, defining the relevant activity or service in question as "trial court operations" is simply too broad a category. First, the circumstances surrounding the adoption of the Headlee Amendment clearly indicate that the people of Michigan intended the word "activity" to apply to more specific functions than the umbrella term "trial court operations." A primary aim of those who ratified the Headlee Amendment was to prevent the state from enacting laws and regulations that create financial burdens on local units, unaccompanied by financial support to alleviate those burdens. Schmidt, 441 Mich. at 251, 490 N.W.2d 584. If all trial court functions fall under the broad category of "trial court operations," the state is free to impose a multitude of laws and regulations on a local unit without an appropriation for the resulting increased costs. To accept the Court of Appeals definition would create a situation in which a local unit can be depicted as having provided practically any activity in 1978, thereby precluding a finding that a "new" activity had been imposed.^[9] This construction effectively nullifies the second sentence of the amendment. The people, in adopting the Headlee Amendment, did not intend to offer so little protection against the very problem that they aimed to prevent.^[10]

Moreover, this Court's decision in Durant reflects that the proffered definition is too broad. In Durant, one issue presented to the Court was whether education, as a whole, is a state-mandated "activity" within the meaning of the Headlee Amendment. Plaintiffs attempted to characterize the relevant activity as "education." They argued that because the state has delegated to local school districts the duty to provide education, all the functions performed by a school district are required by state law within the meaning of the Headlee Amendment. The Court rejected this reasoning and held that § 29 applies only to specific requirements imposed on the school districts by state statutes and state agencies.^[11]

By analogy, just as "education" is too broad a concept for a Headlee examination, so too is the broad concept of "trial court operations." The Court of Appeals reviewed the statutory delineations of various educational functions in order to determine if the activities were specific and identifiable. We should similarly examine the statutory delineations of trial court functions. For example, the Common Pleas Court (the predecessor of the 36th District Court) was a distinct judicial entity, established and operated pursuant to 1929 P.A. 260 and vested with specific judicial authority different from any other court in Wayne County. The same can be said of Recorder's Court. Thus, it is logical to define the relevant activity by the statutory parameters set for its delivery. To define the activities as "former Common Pleas Court functions" and "former Recorder's Court functions" comports with the purpose and intent of the Headlee Amendment as well as the applicable case law.

Thus, I would hold that the relevant activities or services in this case are "former Common Pleas Court functions" and "former Recorder's Court functions." Such a holding would provide the level of specificity required by the Headlee Amendment. Viewing the relevant activities or services as such, I would find that Act 374 violates § 29 of the Headlee Amendment by requiring the city of Detroit to undertake the new or increased responsibility for "former Common Pleas Court functions," and Wayne County for undertaking the new or increased responsibility for "former Recorder's Court functions."

IV. Conclusion

The majority finds no Headlee violation in this case by examining units of local government in the collective for purposes of determining whether the state has required them to undertake "new" or "increased" activities. However, I believe such an approach is simply inconsistent with the language and purpose of Const.1963, art. 9, § 29. Act 374 requires that the city of Detroit provide "former Common Pleas functions" and that Wayne County provide "former Recorder's Court functions." These activities were previously performed by other units of local government. Nevertheless, I believe that the state's funding obligation under the Headlee Amendment is implicated because the activities are "new" to these particular units of local government. Consequently, the state should be required to make appropriations for any necessary increased costs resulting from the requirements of Act 374.

BRICKLEY and MARILYN J. KELLY, JJ., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] We also granted leave to consider whether Act 374 violates the Separation of Powers Clause, Const. 1963, art. 3, § 2, or the public employee relations act, MCL § 423.201 et seq.; MSA § 17.455(1) et seq. Our decisions regarding those issues are separately reported at 459 Mich. 291, 586 N.W.2d 894 (1998).

[2] The dissent correctly points out that Schmidt addressed the first sentence of § 29. However, this does not make Schmidt inapplicable to an analysis of the second sentence of § 29. In fact, the Schmidt Court specifically reiterated that "the two sentences must be read together `[b]ecause they were aimed at the alleviation of two possible manifestations of the same voter concern...." Id. at 250-251, 490 N.W.2d 584, quoting Durant, 424 Mich. at 379, 381 N.W.2d 662.

[3] We note that Act 374 similarly mandates the continuation of an activity already required of local units. Act 374 requires Detroit and Wayne County to do what the state required every local unit to do in 1978: fund the local district or circuit court, respectively, with the exception of the portion of judicial salaries paid by the state.

[4] The issue is whether the state required any local unit to perform an activity in 1978. If it did, it is irrelevant how many or how few units were required to perform the activity. Under our approach, a subsequent requirement that other local units perform the same function at the same level would not constitute a "new" or "increased" activity.

[5] The use of the singular "the unit" in the second phrase of this sentence also indicates that the proper remedy for a violation of the first sentence of § 29 (i.e., a reduction of the state proportion of the necessary costs of a continuing activity) is to pay the individual unit. We fully subscribe to the Schmidt Court's adoption of the state-to-local formulation and rejection of the state-to-state formulation in determining whether there has been a violation of the first sentence of § 29. We agree that § 29 accordingly "impose[s] an obligation on the state vis-a-vis each unit of local government with respect to mandated activities as well as new requirements." Schmidt, supra at 251, 490 N.W.2d 584. Any suggestion otherwise by the dissent is incorrect. There does not appear to be any dispute that with respect to continuing activities, the state must pay its proportion of the necessary costs (as determined under the state-to-local formulation) and that with respect to new or increased activities, the state must pay for all increased necessary costs. The issue before us, on which we and the dissent disagree, is what constitutes a "new" or "increased" activity.

[6] The dissent criticizes our approach by providing two examples: 1) the state shifting activities formerly performed by several units of local government to a single unit, and 2) the state requiring every local unit to establish a separate "Recorder's Court" for criminal prosecutions. Were these scenarios to occur, under our approach, the state would have to provide its proportion of the necessary costs to the local unit for these continuing activities (under the state-to-local formulation), but it would not have to fully fund them as "new" activities. If such legislation were to pass, and were perceived to be unfair, there would surely be, as Chief Justice Cavanagh suggested in his dissent in Schmidt, a political price to pay. 441 Mich. at 280, 490 N.W.2d 584. In short, this type of inequity is simply not addressed by § 29 and is left to the "democratic verdict of the voters." Id. Further, the dissent's invocation of the Legislature doing something "unthinkable" is not a new criticism. In fact, it can be seen in this country as early as Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L. Ed. 23 (1824), where the fear of irresponsible legislation was urged as a reason for judicial action. United States Supreme Court Chief Justice John Marshall memorably dispatched this genre of argument:

The wisdom and the discretion of [the Legislature, its] identity with the people, and the influence which [legislators'] constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. [Id. at 197, 6 L. Ed. 23.]

[7] We also note that Justice Cavanagh's concern in this case with the "wide latitude" given to the state is inconsistent with his dissenting opinion in Schmidt. There, he noted that "it would simply be unreasonable to suppose that the Headlee Amendment was designed or intended to prohibit or forestall any conceivably unwise, unfair, or even evil state fiscal policy that might be imagined." Id. at 279, 490 N.W.2d 584. He also stated that he embraced the proposition that "to the extent the state is not governed by constitutional restraints, it is free to do whatever it wants to do, subject only to the democratic verdict of the voters." Id. at 280, 490 N.W.2d 584.

[8] As noted above, the state funded a portion of judicial salaries in 1978 and fully funds judicial salaries under Act 374. Moreover, as discussed below, judicial salaries are not subject to a Headlee analysis.

[1] The first sentence of the majority opinion in Schmidt explicitly stated that "[t]he question presented is the proper interpretation of the first sentence of § 29 of the Headlee Amendment...." 441 Mich. at 241, 490 N.W.2d 584 (emphasis added).

[2] The complete language of § 29 is as follows:

The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18.

[3] Ironically, the majority examines certain examples from the Schmidt opinion, but it ignores the remainder of the opinion's logic, which, in discussing the first sentence of § 29, repudiates the exact view that is adopted by the majority. See id. at 259-260, 490 N.W.2d 584 ("[T]he statewide approach permits the state to shift funding from some districts to others while still requiring those districts to carry out mandated programs. This separation of the taxing question from the programing question is contrary to one of the primary purposes of the Headlee Amendment").

The idea that the second sentence should be approached from the perspective of an individual unit of local government was also clearly expressed in both of the Schmidt dissents. In my own dissent, I explained:

In a noteworthy contrast, the second sentence of § 29, dealing with state financing of new or increased state-required activities or services, refers to "unit of Local Government" in the singular, by way of prohibiting the state from adding new program obligations or increasing the level of existing program obligations on local governments, "unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs."... [I]t is entirely logical for the requirements of the second sentence of § 29 to apply on a local unit basis. The essence of the second sentence is to require that all new, increased costs resulting from new or increased state program requirements be one hundred percent funded by the state. This could not occur unless every unit's increased costs in that regard were funded one hundred percent. [Id. at 266, n. 2, 490 N.W.2d 584, (opinion of Cavanagh, C.J.).]

Justice Levin's dissent also came to a similar conclusion, albeit for a different reason:

The phrase "taken as a group" set forth in § 30 does not appear in § 29; for purposes of § 29, units of local government are not to be taken as a group. [Id. at 291, n. 21, 490 N.W.2d 584 (opinion of Levin, J.).]

Thus, it seems the only thing that seven justices could agree on in Schmidt was that the second sentence required consideration from the perspective of each individual unit of local government. I believe this clear consensus undermines any reliance on Schmidt by the majority.

[4] The language of the second sentence of § 29 is in notable contrast with that of § 30 of the Headlee Amendment:

The proportion of total state spending paid to all units of Local Government, taken as a group, shall not be reduced below that proportion in effect in fiscal year 1978-79. [Emphasis added.]

If the drafters had meant for the second sentence to apply to units of local governments collectively, they could have made § 29 abundantly clear by adding the modifying phrase "taken as a group" after units of local government, just as they did in § 30. See Schmidt, 441 Mich. at 272-273, 490 N.W.2d 584 (Cavanagh, C.J., dissenting)(adding the words "taken as a group" after "units of local government" would have suggested "that only activities or services required of all units of local government were implicated").

[5] Moreover, the second sentence of § 29 specifically requires the state to pay an individual unit of local government "for any necessary increased costs." (Emphasis added.) This is in direct contrast with the first sentence, which prohibits the state from reducing its "proportion of the necessary costs of any existing activity or service required of units of Local Government by state law." However, the majority requires that the state only pay for a proportion of the necessary cost of any increase in an expense resulting from a shift in responsibilities among different units of local government. While I agree with the majority's quotation of Schmidt explaining that the two sentences of § 29 "must be read together" when interpreting the meaning of those two sentences, op. at 117, n. 2, that does not mean that the two sentences should be read as requiring the same thing. The two sentences should be consistent with one another, but they still provide distinct requirements on the state and cover different situations. Any other interpretation would render the second sentence merely surplusage.

[6] The need for § 29's antishifting protections is underscored by § 31 of the Headlee Amendment, which specifically limits a local unit of government's ability to raise revenue for any new or expanded activities. In particular, § 31 does not allow a locality to raise property or other local taxes "without the approval of a majority of the qualified electors." See Bolt v. City of Lansing, 459 Mich. 152, 587 N.W.2d 264 (1998). Thus, Headlee's antishifting purpose, embodied in § 29, is critical to prevent the state government from requiring new or increased activities of a locality without giving the locality the means to pay for that new mandate. Otherwise, the local government would be forced into the Hobson's choice of trying to convince its constituency to approve by referendum a tax increase to pay for the unfunded state mandate, or to cut other areas of the locality's budget to pay for the mandate. Either choice is not likely to be popular with the voting public.

[7] It is worth noting that both these underlying principles come from Schmidt, which dealt with the first sentence of § 29. Since the first sentence requires that the state continue to fund its proportionate share of preexisting state mandates, it certainly makes sense that the Court was concerned about "minimum funding guarantees for local units" and "uniform allocation of resources." However, the second sentence requires funding for all new or increased activities. Thus, it is questionable whether these underlying purposes identified in Schmidt should apply to the second sentence of § 29 at all.

[8] In 1978, the three trial courts located within Wayne County were organized differently than trial courts in other counties in the state of Michigan. In most Michigan counties there existed a district court and a circuit court. In Wayne County, there existed Recorder's Court, the Common Pleas Court, and the Third Circuit Court. Detroit Recorder's Court jurisdiction included felony, misdemeanor, and traffic and ordinance violations arising within the city of Detroit. Additionally, the civil functions normally performed by a district court were performed by the Common Pleas Court. Its jurisdiction included civil disputes less than $10,000 and landlord-tenant disputes. The Third Circuit Court's organization and jurisdiction was the same as other circuit courts statewide.

In 1980, the Legislature enacted 1980 P.A. 438 and 440, reorganizing the three Detroit/Wayne County trial courts. The acts created the 36th District Court and transferred to it the functions performed by the Common Pleas Court along with the criminal misdemeanor and traffic and ordinance divisions of Recorder's Court. The Common Pleas Court was abolished. However, Recorder's Court continued to have felony criminal jurisdiction.

It is worth noting that the Legislature conditioned the 1980 court reform legislation on the city of Detroit and Wayne County agreeing to assume responsibility for the expenses required of them by the court reform legislation. As a result of negotiations between the local units and the state, both the city and the county expressly waived any potential claims under the Headlee Amendment.

[9] For example, as plaintiffs argue, local units also have the obligation to provide education, prosecuting attorneys, police officers, fire protection, etc. Every new local mandate will, by definition, fall under one of these categories since these are only the broadly defined categories under which local units of government are vested with the power to act. To define the relevant activity in such a broad manner means that every new mandate would be determined for Headlee purposes to be merely a continuation of broader, preexisting activities.

[10] Further support is found in the definitions contained in the Headlee implementation statute:

"Activity" means a specific and identifiable administrative action of a local unit of government. The provision of a benefit for, or the protection of, public employees of a local unit of government is not an administrative action. [MCL § 21.232(1); MSA § 5.3194(602)(1).]

"Service" means a specific and identifiable program of a local unit of government which is available to the general public or is provided for the citizens of the local unit of government. The provision of a benefit for, or the protection of, public employees of a local unit of government is not a program. [MCL § 21.234(1); MSA § 5.3194(604)(1).]

These definitions reinforce the idea that the Court of Appeals characterization of the relevant activity as "trial court operations" is too broad. Trial court functions as a whole have historically been broken down to specific areas of jurisdictional authority. Thus, to characterize the activity or service that a local unit provides as "trial court services" would do little to shed light on what the unit "specific[ally] and identifiabl[y]" provides.

[11] Durant v. State Bd. of Ed., 424 Mich. at 375, 381 N.W.2d 662. This portion of the decision affirmed the decision of the Court of Appeals on remand, which stated:

Only those specific and identifiable programs which the state requires the school districts to provide by state statute or state agency regulation fall within the state financing requirements of § 29. [129 Mich.App. 517, 528, 342 N.W.2d 591 (1983).]

Examples of such state-mandated programs as stated in Durant are: courses in the constitution, history, government, and civics, courses in health and physical education, bilingual instruction in school districts with an enrollment of twenty or more children of limited English speaking ability, special education, etc.