Timothy L Johnson v. Public School Employees Retirement System ( 2016 )


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  •                  STATE OF MICHIGAN
    COURT OF APPEALS
    AFT MICHIGAN, HENRY FORD              FOR PUBLICATION
    COMMUNITY COLLEGE ADJUNCT             June 7, 2016
    FACULTY ORGANIZATION, AFL CIO, AFT,
    ALPENA MONTMORENCY ALCONA ISD
    PARAPROFESSIONALS, ALPENA
    MONTMORENCY ALCONA ISD TEACHERS,
    ARENAC EASTERN FEDERATION, BAY
    ARENAC SKILLS CENTER FEDERATION,
    BROWN CITY EMPLOYEES ORGANIZATION,
    BROWN CITY FEDERATION OF TEACHERS,
    CHEBOYGAN OTSEGO PRESQUE ISLE
    SUPPORT PERSONNEL, CHEBOYGAN
    OTSEGO PRESQUE ISLE INTERMEDIATE
    PARAPROFESSIONALS, CHEASANING
    UNION AUXILIARY SERVICE EMPLOYEES,
    CLARE GLADWIN ISD FEDERATION,
    CRAWFORD AUSABLE BUS DRIVERS
    FEDERATION, CRAWFORD AUSABLE
    CUSTODIANS SECRETARIAL FEDERATION,
    CRAWFORD AUSABLE FEDERATION OF
    TEACHERS, CRAWFORD AUSABLE
    SUPPORT STAFF FEDERATION,
    CRESTWOOD FEDERATION OF TEACHERS,
    CTR FEDERATION, DEARBORN
    FEDERATION OF SCHOOL EMPLOYEES,
    DEARBORN FEDERATION OF TEACHERS,
    DETROIT ASSOCIATION OF EDUCATIONAL
    OFFICE EMPLOYEES, DETROIT
    FEDERATION OF PARAPROFESSIONALS,
    DETROIT FEDERATION OF TEACHERS,
    EAST DETROIT FEDERATION OF
    TEACHERS, ECORSE FEDERATION OF
    TEACHERS, FAIRVIEW FEDERATION OF
    TEACHERS, FEDERATION OF TEACHERS,
    GLEN LAKE FEDERATION OF TEACHERS,
    HALE FEDERATION OF TEACHERS,
    HAMTRAMCK FEDERATION OF TEACHERS,
    HEMLOCK FEDERATION OF TEACHERS,
    HENRY FORD COMMUNITY COLLEGE
    ADJUNCT FACULTY ORGANIZATION,
    -1-
    HENRY FORD COMMUNITY COLLEGE
    FEDERATION OF TEACHERS, HIGHLAND
    PARK FEDERATION OF
    PARAPROFESSIONALS, HIGHLAND PARK
    FEDERATION OF TEACHERS, HURON
    VALLEY CONTINUING EDUCATION, IMLAY
    CITY FEDERATION OF TEACHERS, INKSTER
    FEDERATION OF TEACHERS, IOSCO ISD
    FEDERATION OF TEACHERS, IOSCO ISD
    INTERMEDIATE FEDERATION OF
    AUXILIARY EMPLOYEES, KINGSLEY
    FEDERATION OF TEACHERS, KIRTLAND
    COMMUNITY COLLEGE FEDERATION OF
    TEACHERS, LAMPHERE FEDERATION OF
    PARAPROFESSIONALS, LAMPHERE
    FEDERATION OF TEACHERS, LANSING
    COMMUNITY COLLEGE ADMINISTRATIVE
    ASSOCIATION, LES CHENEAUX
    FEDERATION OF SUPPORT STAFF, LES
    CHENEAUX FEDERATION OF TEACHERS,
    LAKE CITY SUPPORT STAFF FEDERATION,
    LAKE CITY TEACHERS AND
    PARAPROFESSIONALS FEDERATION, LAKE
    SHORE FEDERATION OF EDUCATIONAL
    SECRETARIES, LAKE SHORE FEDERATION
    OF TEACHERS, LAKE SHORE FEDERATION
    SUPPORT STAFF, MACOMB INTERMEDIATE
    FEDERATION OF PARAPROFESSIONALS,
    MACOMB INTERMEDIATE FEDERATION OF
    TEACHERS, MELVINDALE NAP
    FEDERATION OF TEACHERS, MELVINDALE
    NAP PARAPROFESSIONALS, MIDLAND
    FEDERATION OF PARAPROFESSIONALS,
    MIDLAND ISD FEDERATION OF
    PARAPROFESSIONALS, MIDLAND ISD
    FEDERATION OF TEACHERS, NORTHVILLE
    FEDERATION OF PARAPROFESSIONALS,
    ONWAY FEDERATION OF SCHOOL
    RELATED PERSONNEL, ONWAY
    FEDERATION OF TEACHERS, PLYMOUTH
    CANTON COMMUNITY SCHOOL
    SECRETARIAL UNIT, PLYMOUTH CANTON
    FEDERATION OF PLANT ENGINEERS,
    ROMULUS FEDERATION OF
    PARAPROFESSIONALS, ROSEVILLE
    FEDERATION OF TEACHERS, RUDYARD
    -2-
    FEDERATION OF AIDES, RUDYARD
    FEDERATION OF TEACHERS, SAGINAW ISD
    FEDERATION OF TEACHERS, TAWAS AREA
    FEDERATION OF TEACHERS, TAYLOR
    FEDERATION OF TEACHERS, UTICA
    FEDERATION OF TEACHERS, VAN DYKE
    EDUCATIONAL ASSISTANTS FEDERATION,
    VAN DYKE PROFESSIONAL PERSONNEL,
    WARREN WOODS FEDERATION OF
    PARAPROFESSIONALS, WASHTENAW
    INTERMEDIATE SCHOOL EMPLOYEES
    FEDERATION, WATERFORD ASSOCIATION
    OF SUPPORT PERSONNEL, WAYNE COUNTY
    COMMUNITY COLLEGE FEDERATION OF
    TEACHERS, WAYNE COUNTY COMMUNITY
    COLLEGE PROFESSIONAL AND ADMIN
    ASSOCIATION, WAYNE COUNTY RESA
    SALARIED STAFF, WEXFORD MISSAUKEE
    ISD FEDERATION OF TEACHERS,
    WHITEFISH TOWNSHIP FEDERATION OF
    TEACHERS, CHEBOYGAN OTSEGO
    PRESQUE ISLE ISD TEACHERS and
    HEMLOCK AUXILIARY SERVICE
    EMPLOYEES,
    Plaintiffs-Appellees,
    v                                             No. 303702
    Court of Claims
    STATE OF MICHIGAN,                            LC No. 10-000091-MM
    Defendant-Appellant.
    TIMOTHY L. JOHNSON, JANET HESLET,
    RICKY A. MACK and DENISE ZIEJA,
    Plaintiffs-Appellees/Cross-
    Appellants,
    v                                             No. 303704
    Court of Claims
    PUBLIC SCHOOL EMPLOYEES RETIREMENT            LC No. 10-000047-MM
    SYSTEM, PUBLIC SCHOOL EMPLOYEES
    RETIREMENT SYSTEM BOARD, TRUST FOR
    PUBLIC EMPLOYEE RETIREMENT HEALTH
    -3-
    CARE and DEPARTMENT OF TECHNOLOGY,
    MANAGEMENT, AND BUDGET,
    Defendants-Appellants/Cross-
    Appellees,
    and
    DIRECTOR OF DEPARTMENT OF
    TECHNOLOGY MANAGEMENT AND
    BUDGET, DIRECTOR OF RETIREMENT
    SERVICES OFFICE and STATE TREASURER,
    Defendants.
    DEBORAH MCMILLAN, THOMAS BRENNER,
    THERESA DUDLEY, KATHERINE DANIELS
    and COREY CRAMB,
    Plaintiffs-Appellees/Cross-
    Appellants,
    v                                              No. 303706
    Court of Claims
    PUBLIC SCHOOL EMPLOYEES RETIREMENT             LC No. 10-000045-MM
    SYSTEM, PUBLIC SCHOOL EMPLOYEES
    RETIREMENT SYSTEM BOARD, TRUST FOR
    PUBLIC EMPLOYEE RETIREMENT HEALTH
    CARE and DEPARTMENT OF TECHNOLOGY,
    MANAGEMENT, AND BUDGET,
    Defendants-Appellants/Cross-
    Appellees,
    and
    DIRECTOR OF DEPARTMENT OF
    TECHNOLOGY MANAGEMENT AND
    BUDGET, DIRECTOR OF RETIREMENT
    SERVICES OFFICE and STATE TREASURER,
    Defendants.
    -4-
    ON REMAND
    Before: SHAPIRO, P.J., and SAAD and BECKERING, JJ.
    SAAD, J. (concurring in part and dissenting in part)
    I concur with the majority’s conclusion that none of the issues before us has been
    rendered moot by the Michigan Supreme Court’s decision in AFT Mich v Michigan, 
    497 Mich 197
    ; 866 NW2d 782 (2015). However, I respectfully disagree with the majority’s view that
    § 43e of 
    2010 PA 75
     is violative of the Contracts Clauses of the Michigan and United States
    Constitutions, US Const, art I, § 10 and Const 1963, art 1, § 10, the Takings Clauses of the Fifth
    Amendment and Const 1963, art 10, § 2, and the Due Process Clauses of the Fourteenth
    Amendment and Const 1963, art 1, § 17. Accordingly, just as I dissented from the majority’s
    decision in AFT Mich v Michigan, 
    297 Mich App 597
    ; 825 NW2d 595 (2012), vacated 
    498 Mich 851
     (2015), I again dissent from the majority’s decision here that the mandatory contributions at
    issue are unconstitutional.
    I. NATURE OF THE CASE
    In 
    1974 PA 244
    , the Michigan Legislature amended the Public School Employees
    Retirement Act, 
    1945 PA 136
    , to provide, on or after January 1, 1975, health care benefits for
    retired employees of the Michigan public schools. The act provided that the Michigan Public
    School Employees Retirement System (MPSERS) would pay health care premiums for retired
    employees and their dependents under any group health plan authorized by the retirement
    commission. MCL 38.325b(1). In 1980, the Legislature enacted the Public School Employees
    Retirement Act of 1979, 
    1980 PA 300
    , MCL 38.1301 et seq., setting forth the health care
    coverage provision in MCL 38.1391(1). Pursuant to MCL 38.1341, public schools must
    contribute to the MPSERS a percentage of the total amount of their payroll to pay the cost of
    health care premiums for retirees and their dependents. In other words, Michigan taxpayers
    have, for years, paid for public school employees’ retiree health care benefits.
    Over the years, the number of retiree participants in the MPSERS program has grown
    significantly and, therefore, so has the expense to the taxpaying public, which knows little about
    this unseen, but enormous, cost to the public education system. Indeed, Phillip Stoddard,
    Director of the Office of Retirement Services of the Michigan Department of Technology,
    Management, and Budget, estimated that for the year beginning October 1, 2010, the cost of
    health care for retirees and their dependents would exceed $920,000,000. Thus, it now costs
    school districts (meaning taxpayers) almost a billion dollars a year for retiree health care alone.
    Faced with these unsustainable, increasing costs, the Legislature has passed various amendments
    to increase the copays and deductibles that retirees pay for their health care. These modifications
    that require retired public school employees to contribute to their health care costs have survived
    constitutional challenge from education workers. Indeed, our Supreme Court has ruled that the
    Legislature created and may revoke this taxpayer-funded benefit and that retiree health care
    benefits are not a constitutionally protected contract right, nor a vested right under the Michigan
    Constitution.
    -5-
    With the enactment of MCL 38.1343e in 
    2010 PA 75
    ,1 the Legislature required current
    public school employees to not only pay copays and deductibles upon retirement, but also pay
    dollars directly into the program from which they will reap generous retiree health care benefits.
    Again, the public school employees object by claiming constitutional infirmities that, in truth, do
    not exist. I respectfully disagree with the majority’s ruling because the challenged legislation is
    constitutional.
    II. STANDARD OF REVIEW
    This Court reviews constitutional issues de novo. Cummins v Robinson Twp, 
    283 Mich App 677
    , 690; 770 NW2d 421 (2009). This Court also reviews de novo a trial court’s decision
    on a motion for summary disposition. Moraccini v Sterling Heights, 
    296 Mich App 387
    , 391;
    822 NW2d 799 (2012).
    III. IMPAIRMENT OF CONTRACT
    The majority’s holding that MCL 38.1343e violates the Contracts Clauses is incorrect
    because, as a matter of law, MCL 38.1343e has not “operated as a substantial impairment of a
    contractual relationship.” Allied Structural Steel Co v Spannaus, 
    438 US 234
    , 244; 
    98 S Ct 2716
    ; 
    57 L Ed 2d 727
     (1978). Indeed, MCL 38.1343e cannot possibly implicate these
    constitutional provisions because it does not affect, much less impair, any contract. Simply put,
    to constitute an impairment of contract, there must first be a contract that is impaired. Thus, for
    plaintiffs to state a claim, MCL 38.1343e must have altered either a contract between the state
    itself and the public school employees or the public school employees’ contracts with some third
    party. MCL 38.1343e does neither. And, because no contract has been impaired, this claim
    must fail.
    I begin with the established principle that legislative enactments are presumed to be
    constitutional absent a clear showing to the contrary. Mich Soft Drink Ass’n v Dep’t of Treasury,
    
    206 Mich App 392
    , 401; 522 NW2d 643 (1994). “The party challenging the constitutionality of
    legislation bears the burden of proof.” 
    Id.
     The majority holds that MCL 38.1343e violates the
    Contracts Clauses of the United States and Michigan Constitutions.
    This state’s constitution, Const 1963, art 1, § 10, provides that “[n]o bill of
    attainder, ex post facto law or law impairing the obligation of contract shall be
    enacted,” which is substantially identical to the federal constitution, US Const, art
    I, § 10, which provides that “[n]o State shall . . . pass any Bill of Attainder, ex
    post facto Law, or Law impairing the Obligation of Contracts . . . .” Our state
    constitutional provision is not interpreted more expansively than its federal
    counterpart. [Attorney Gen v Mich Pub Serv Comm, 
    249 Mich App 424
    , 434; 642
    NW2d 691 (2002).]
    1
    Of course, 
    2012 PA 300
     later modified MCL 38.1343e, but my citation to MCL 38.1343e in
    this opinion will refer only to the version presented in 
    2010 PA 75
    .
    -6-
    The constitutional prohibition on the impairment of contracts is not absolute and must be
    accommodated to the state’s inherent police power to safeguard the vital interests of the people.
    Health Care Ass’n Workers Comp Fund v Bureau of Worker’s Compensation Director, 
    265 Mich App 236
    , 240-241; 694 NW2d 761 (2005).
    A three-pronged test is used to analyze Contract Clause issues. The first
    prong considers whether the state law has operated as a substantial impairment of
    a contractual relationship. The second prong requires that legislative disruption of
    contractual expectancies be necessary to the public good. The third prong
    requires that the means chosen by the Legislature to address the public need be
    reasonable. In other words, if the impairment of a contract is only minimal, there
    is no unconstitutional impairment of a contract. However, if the legislative
    impairment of a contract is severe, then to be upheld it must be affirmatively
    shown that (1) there is a significant and legitimate public purpose for the
    regulation and (2) that the means adopted to implement the legislation are
    reasonably related to the public purpose. [Id. at 241 (citations omitted).]
    In addition, the inquiry under the first prong regarding whether the state law substantially
    impairs a contractual relationship “has three components: whether there is a contractual
    relationship, whether a change in law impairs that contractual relationship, and whether the
    impairment is substantial.” Gen Motors Corp v Romein, 
    503 US 181
    , 186; 
    112 S Ct 1105
    ; 
    117 L Ed 2d 328
     (1992).
    First, under the Michigan Supreme Court’s ruling in Studier v Mich Pub Sch Employees’
    Ret Bd, 
    472 Mich 642
    ; 698 NW2d 350 (2005), the public school employees have no contract
    with the state for retiree health care benefits, nor do the public school employees have vested
    rights in retiree health care benefits. In Studier, the Court held that MCL 38.1391(1) does not
    create a contract with public school retirees for retiree health care benefits. The plaintiffs, six
    public school retirees, argued that increases in their prescription drug copayments and
    deductibles violated US Const, art I, § 10, and Const 1963, art 1, § 10, both of which prohibit a
    law that impairs an existing contractual obligation. Studier, 472 Mich at 647-648. The Supreme
    Court noted that, in general, “one legislature cannot bind the power of a successive legislature.”
    Id. at 660. This principle can be limited where it is in tension with the constitutional prohibitions
    against the impairment of contracts. Id. at 660-661. However, “such surrenders of legislative
    power are subject to strict limitations that have developed in order to protect the sovereign
    prerogatives of state governments.” Id. at 661. Thus, a strong presumption exists that statutes do
    not create contractual rights. Id. Absent a clear indication that the Legislature intended to bind
    itself contractually, a law is presumed not to create contractual or vested rights. Id. To form a
    contract, the language of a statute must be plain and susceptible of no other reasonable
    construction than that the Legislature intended to bind itself. Id. at 662. Absent an expression of
    such an intent, “courts should not construe laws declaring a scheme of public regulation as also
    creating private contracts to which the state is a party.” Id.
    Applying these principles, the Studier Court concluded that the plaintiffs had failed to
    overcome the strong presumption that the Legislature did not intend to surrender its legislative
    powers by entering into a contractual agreement to provide retiree health care benefits to public
    school employees. Id. at 663. “Nowhere in MCL 38.1391(1), or in the rest of the statute, did the
    -7-
    Legislature provide for a written contract on behalf of the state of Michigan or even use terms
    typically associated with contractual relationships, such as ‘contract,’ ‘covenant,’ or ‘vested
    rights.’ ” Id. at 663-664. Had the Legislature intended to surrender its power to amend the
    statute to remove or diminish the benefits provided, it would have done so explicitly. Id. at 665.
    Therefore, Studier is directly controlling here, and no contracts entitling plaintiff
    employees to receive retiree health care benefits exist and, as such, cannot be impaired.
    Second, the collective bargaining agreements (CBAs) between the public school
    employees and various school districts are not even touched, much less impaired. Though the
    plaintiffs in Docket No. 303704 argue that their breach of contract count is based on CBAs with
    their local school districts entitling them to compensation at rates established in the agreements,
    in their complaint, they did not allege that any CBAs existed or that such agreements formed the
    basis of the breach of contract count, and they did not attach any contracts to their complaint.2
    Further, the state is not a party to the CBAs and cannot be bound by them. Equal Employment
    Opportunity Comm v Waffle House, Inc, 
    534 US 279
    , 294; 
    122 S Ct 754
    ; 
    151 L Ed 2d 755
    (2002); Baraga Co v State Tax Comm, 
    466 Mich 264
    , 266; 645 NW2d 13 (2002).
    In any case, obviously, the CBAs do not address the retiree health care system because
    this is a benefit created by the state. By virtue of MCL 38.1343e, the state required public school
    employees to contribute money to help defray the cost of retiree health care benefits. This
    statutory mandate is between the state and each worker, and this has nothing to do with any
    contract. Regardless of the wage levels negotiated in CBAs for principals, teachers, or
    noninstructional workers, those levels are not affected. If, for example, a school district has
    contracted with a teacher to pay him or her $80,000 a year, the state’s mandate that the employee
    contribute three percent under MCL 38.1343e does not alter the school district’s contractual
    obligation. Indeed, the state Legislature could change the mandate to four percent or one
    percent, and the school district would nevertheless be required by contract (CBA) to pay the
    teacher $80,000 a year. MCL 38.1343e simply sets forth a mechanism to ensure that each
    member of MPSERS makes this contribution by requiring school districts to deduct the
    contribution from the member’s pay and submit it to the retiree health care system. But the
    particular method is quite apart from the terms of any labor agreement and, indeed, the state
    could have enforced this mandate by a lump sum or periodic payments made directly by each
    member. That the state chose a paycheck deduction method simply does not convert a
    permissible legislatively mandated contribution into an unconstitutional impairment of contract.
    Clearly, this case concerns the state’s demands or financial assessment upon each public school
    employee, and has nothing to do with any contract between each employee and the state, or a
    2
    Plaintiffs in Docket No. 303704 note that an employment contract necessarily exists for every
    employee who performs services in exchange for compensation regardless of whether there was
    a CBA and, thus, that the failure to plead the existence of CBAs was not fatal to plaintiffs’
    claims. However, plaintiffs did not merely fail to allege that any CBAs existed, they failed to
    allege that any employment contract for wages was impaired by the operation of MCL 38.1343e.
    -8-
    third party.   Accordingly, this constitutional theory to challenge this legislation should be
    rejected.3
    IV. TAKINGS CLAUSES
    I also dissent from the majority’s holding that MCL 38.1343e effectuates a taking under
    the United States and Michigan Constitutions. Quite simply, MCL 38.1343e does not effectuate
    a taking of private property for which the government must give just compensation. Further, no
    caselaw holds that a “taking” occurs when the Legislature requires a public school employee to
    contribute money as a condition for receiving benefits in a state-created retirement health care
    program, which was designed for the benefit of the employee.
    US Const, Am V provides that private property shall not “be taken for public use, without
    just compensation.” This prohibition applies against the states through the Fourteenth
    Amendment. Webb’s Fabulous Pharmacies, Inc v Beckwith, 
    449 US 155
    , 160; 
    101 S Ct 446
    ; 
    66 L Ed 2d 358
     (1980); K & K Constr, Inc v Dep’t of Natural Resources, 
    456 Mich 570
    , 576 n 3;
    575 NW2d 531 (1998). Also, Michigan’s Constitution provides that “[p]rivate property shall not
    be taken for public use without just compensation therefor being first made or secured in a
    manner prescribed by law.” Const 1963, art 10, § 2. The Takings Clauses do not prohibit the
    taking of private property; rather, they place a condition on the exercise of that power. First
    English Evangelical Lutheran Church of Glendale v Los Angeles Co, 
    482 US 304
    , 314; 
    107 S Ct 2378
    ; 
    96 L Ed 2d 250
     (1987); Chelsea Investment Group LLC v City of Chelsea, 
    288 Mich App 239
    , 261; 792 NW2d 781 (2010). “This basic understanding of the [Fifth] Amendment makes
    clear that it is designed not to limit the governmental interference with property rights per se, but
    rather to secure compensation in the event of otherwise proper interference amounting to a
    taking.” First English, 
    482 US at 315
    .
    Here, plaintiffs do not seek “just compensation” for the “taking of property” arising from
    an otherwise proper governmental interference. Rather, they alleged that MCL 38.1343e is
    unconstitutional as applied to them and sought a declaratory ruling to that effect. The trial court
    granted the requested relief, ordering defendants to “cease and desist from enforcing or
    implementing MCL 38.1343e and from deducting 3% of members’ compensation,” in addition to
    requiring defendants to return, with interest, the contributions already deducted. This declaratory
    3
    It is not clear to what extent the majority relies in its discussion in Parts II, II, or IV of its
    opinion on its assertion earlier in Part I that the mandatory deductions were unconstitutional not
    by virtue of their mandatory nature but because “the contributions were to a system in which the
    employee contributors have no vested rights.” Nevertheless, the majority cites to no authority
    for this novel proposition. If this were true, then many other legislative enactments would be
    deemed unconstitutional. Though many examples exist, one need look no further than the
    United States Medicare system, where one must contribute through payroll deductions for health
    care for when the person eventually attains the age of 65. Thus, under the majority’s view,
    Congress’s choice to fund Medicare though payroll deductions would be unconstitutional
    because a contributing worker may never become vested in any Medicare benefits. But as
    already noted, I find no support in the law for this proposition.
    -9-
    ruling invalidating the statute was not an award of just compensation for a taking effectuated by
    an otherwise proper governmental action. Thus, the relief requested and granted in these cases is
    not that contemplated under the Takings Clauses, and the rulings should be reversed.
    The majority’s application of the Takings Clauses to plaintiffs’ claims is legally
    unsupportable. Again, requiring a monetary contribution to a retiree health care plan does not
    trigger the clauses because no constitutionally protected property interest is invaded. The
    percentage deductions from plaintiff employees’ compensation are not physical appropriations of
    property. Money is fungible and, quite simply, it is artificial to view the deductions as a taking
    of property requiring just compensation. United States v Sperry Corp, 
    493 US 52
    , 57-58, 62 n 9;
    
    110 S Ct 387
    ; 
    107 L Ed 2d 290
     (1989). The payroll deductions are merely the Legislature’s
    chosen means to effectuate the employees’ obligation under MCL 38.1343e to contribute to their
    own retirement system in which, under existing law, MCL 38.1391, they will participate upon
    retirement.
    I recognize that, in limited situations, a specific fund of money may be considered
    property for Takings Clause purposes, Webb’s Fabulous Pharmacies, 
    449 US at 156
    , but no such
    fund exists here. Further, it is well established that a specific property right or interest must be at
    stake in order to find a regulatory taking. See Eastern Enterprises v Apfel, 
    524 US 498
    , 541-542,
    544-546; 
    118 S Ct 2131
    ; 
    141 L Ed 2d 451
     (1998) (Kennedy, J., concurring in the judgment and
    dissenting in part). Justice Kennedy noted that although the statute at issue in that case imposed
    a financial burden, it did so without operating on or altering an identified property interest. 
    Id. at 540
    .
    The [statute] does not appropriate, transfer, or encumber an estate in land
    (e.g., a lien on a particular piece of property), a valuable interest in an intangible
    (e.g., intellectual property), or even a bank account or accrued interest. The law
    simply imposes an obligation to perform an act, the payment of benefits. The
    statute is indifferent as to how the regulated entity elects to comply or the
    property it uses to do so. [Id.]
    In Eastern Enterprises, Justice Kennedy would have held that the Takings Clause did not
    apply. 
    Id. at 547-550
    . Furthermore, four other justices agreed with Justice Kennedy that the
    Takings Clause did not apply because the case involved “not an interest in physical or
    intellectual property, but an ordinary liability to pay money, and not to the Government, but to
    third parties.” 
    Id. at 554
     (Breyer, J., dissenting). Justice Breyer noted that in Webb’s Fabulous
    Pharmacies, the monetary interest at issue “arose out of the operation of a specific, separately
    identifiable fund of money. And the government took that interest for itself.” 
    Id. at 555
    .4
    4
    And a point the majority avoids is that, on the basis of the analysis expressed by the five
    justices in Eastern Enterprises, lower federal courts have repeatedly held that the imposition of
    an obligation to pay money does not constitute a taking of private property. See Adams v United
    States, 391 F3d 1212, 1225 (CA Fed, 2004) (“We decline to treat a statutory right to be paid
    money as a legally-recognized property interest, as we would real property, physical property, or
    -10-
    The majority labors to find a taking by denominating money as property, despite contrary
    law. The majority reasons that increasing the dollars a retiree must pay is different from
    requiring current public school workers to contribute money to pay for current retirees who,
    incidentally, may have been coworkers yesterday and whom current workers may join tomorrow.
    Regardless, of course, this distinction has no relevance because it is a retiree health care system
    in which all may share and to which the Legislature has said all must contribute.
    Again, MCL 38.1343e states a condition that, after the effective dates of the statute,
    public school employees must contribute money to a program the Legislature created for those
    employees upon retirement. Thus, any property interests in the wage levels contained in
    plaintiffs’ respective CBAs were not retroactively affected. See McCarthy v City of Cleveland,
    626 F3d 280, 286 (CA 6, 2010), and cases cited therein. Further, unlike in Webb’s Fabulous
    Pharmacies and Phillips v Washington Legal Foundation, 
    524 US 156
    ; 
    118 S Ct 1925
    ; 
    141 L Ed 2d 174
     (1998), no extraction of interest generated in a specific fund of money has occurred. The
    essence of plaintiffs’ claim is that the state may not take future wages established by their CBAs.
    Though this is a fallacy because the state demands payment from each worker irrespective of any
    negotiated wage levels, if there is a remedy, the proper remedy lies in contract, not taking, and a
    valid taking claim will lie only when the property rights exist independently of the claimants’ so-
    called contracts with the government. Niagara Mohawk Power Corp v United States, 98 Fed Cl
    313, 315 (2011); see also Peick v Pension Benefit Guaranty Corp, 724 F2d 1247, 1276 (CA 7,
    1983); Klamath Irrigation Dist v United States, 67 Fed Cl 504, 534 (2005), mod on other
    grounds 68 Fed Cl 119 (2005). Importantly, however, the fact that a contract theory may not
    yield a recovery or provide a full remedy in a given case “ ‘does not give life to a takings
    theory.’ ” Niagara Mohawk, 98 Fed Cl at 316, quoting Home Savings of America, FSB v United
    States, 51 Fed Cl 487, 495-496 (2002). In other words, that a Contracts Clause claim provides
    no relief does not resurrect an equally spurious taking claim.
    V. SUBSTANTIVE DUE PROCESS
    I also dissent from the majority’s holding that the plaintiffs in Docket No. 303702
    established that MCL 38.1343e is unconstitutional under the Due Process Clauses of the
    Fourteenth Amendment and Const 1963, art 1, §17. Because the Takings and Contracts Clauses
    provide explicit textual sources of constitutional protection regarding the type of governmental
    conduct at issue (but provide no relief for the reasons already stated), plaintiffs are precluded
    intellectual property.”); Commonwealth Edison Co v United States, 271 F3d 1327, 1340 (CA
    Fed, 2001) (“[W]hile a taking may occur when a specific fund of money is involved, the mere
    imposition of an obligation to pay money, as here, does not give rise to a claim under the
    Takings Clause of the Fifth Amendment.”); Parella v Ret Bd of Rhode Island Employees’ Ret
    Sys, 173 F3d 46, 50 (CA 1, 1999). In McCarthy v City of Cleveland, 626 F3d 280, 286 (CA 6,
    2010), the court held “that the Takings Clause ‘is not an appropriate vehicle to challenge the
    power of [a legislature] to impose a mere monetary obligation without regard to an identifiable
    property interest,’ ” quoting Swisher Int’l, Inc v Schafer, 550 F3d 1046, 1057 (CA 11, 2008).
    The McCarthy court noted that although some lower federal courts have followed the Eastern
    Enterprises plurality’s taking analysis, those courts “have done so only where a specific private
    property interest is retroactively affected.” McCarthy, 626 F3d at 285-286.
    -11-
    from asserting generalized substantive due process claims. That the majority holds otherwise is
    clearly contrary to our constitutional jurisprudence. Sacramento Co v Lewis, 
    523 US 833
    , 842;
    
    118 S Ct 1708
    ; 
    140 L Ed 2d 1043
     (1998). The clause should not be invoked “to do the work” of
    other constitutional provisions, even when they offer a plaintiff no relief. Stop the Beach
    Renourishment, Inc v Fla Dep’t of Environmental Protection, 
    560 US 702
    , 720-721; 
    130 S Ct 2592
    ; 
    177 L Ed 2d 184
    , 200 (2010) (plurality opinion by Scalia, J.). The plaintiffs in Docket
    Nos. 303704 and 303706 expressly alleged contract and taking claims. The complaint in Docket
    No. 303702 alleges only a substantive due process claim, but the label placed on a claim is not
    dispositive. Adams v Adams, 
    276 Mich App 704
    , 710-711; 742 NW2d 399 (2007). Instead, the
    gravamen of an action is determined by reading the complaint as a whole. 
    Id.
     Because the
    underlying allegations are that MCL 38.1343e operates to extract a percentage of plaintiff
    employees’ compensation, the claims fall within the explicit sources of protection provided by
    the Takings or Contracts Clauses. Resort to the generalized notion of substantive due process is
    thus improper. Cummins, 283 Mich App at 704, citing Lewis, 
    523 US at 842
    .
    Furthermore, a proper review under the applicable standards reveals that plaintiffs’
    claims are without merit. Both the Michigan and United States Constitutions prohibit the state
    from depriving any person of life, liberty, or property without due process of law. Specifically,
    the Michigan Constitution provides the following:
    No person shall be . . . deprived of life, liberty or property, without due process of
    law. The right of all individuals, firms, corporations and voluntary associations to
    fair and just treatment in the course of legislative and executive investigations and
    hearings shall not be infringed. [Const 1963, art 1, § 17.]
    As our Supreme Court has noted, “the term ‘due process’ encompasses not only procedural
    protections, but also contains a ‘substantive’ component that protects individuals against ‘the
    arbitrary exercise of governmental power.’ ” AFT Mich, 497 Mich at 245, quoting Bonner v City
    of Brighton, 
    495 Mich 209
    , 223-224; 848 NW2d 380 (2014). When a law is challenged on
    substantive due process grounds and the law does not infringe on any “fundamental rights,” i.e.,
    “the substantive liberties that are deemed ‘implicit in the concept of ordered liberty,” our review
    is that of rational basis. AFT Mich, 497 Mich at 245; see also Conlin v Scio Twp, 
    262 Mich App 379
    , 390; 686 NW2d 379 (2004). In other words, the plaintiff has to “prove that the challenged
    law is not ‘reasonably related to a legitimate governmental interest.’ ” AFT Mich, 497 Mich at
    245, quoting Bonner, 495 Mich at 227.
    As illustrated by our Supreme Court, this is a very high burden:
    “Rational basis review does not test the wisdom, need, or appropriateness of the
    legislation, or whether the classification is made with ‘mathematical nicety,’ or
    even whether it results in some inequity when put into practice.” Crego v
    Coleman, 
    463 Mich 248
    , 260; 615 NW2d 218 (2000). Rather, it tests only
    whether the legislation is reasonably related to a legitimate governmental purpose.
    The legislation will pass “constitutional muster if the legislative judgment is
    supported by any set of facts, either known or which could reasonably be
    assumed, even if such facts may be debatable.” 
    Id. at 259-260
    . To prevail under
    this standard, a party challenging a statute must overcome the presumption that
    -12-
    the statute is constitutional. Thoman v City of Lansing, 
    315 Mich 566
    , 576; 24
    NW2d 213 (1946)[, overruled on other grounds E Grand Rapids Sch Dist v Kent
    Co Tax Allocation Bd, 
    415 Mich 381
    ; 330 NW2d 7 (1982)]. Thus, to have the
    legislation stricken, the challenger would have to show that the legislation is
    based “solely on reasons totally unrelated to the pursuit of the State’s goals,”
    Clements v Fashing, 
    457 US 957
    , 963; 
    102 S Ct 2836
    ; 
    73 L Ed 2d 508
     (1982), or,
    in other words, the challenger must “negative every conceivable basis which
    might support” the legislation. Lehnhausen v Lake Shore Auto Parts Co, 
    410 US 356
    , 364; 
    93 S Ct 1001
    ; 
    35 L Ed 2d 351
     (1973). [TIG Ins Co, Inc v Dep’t of
    Treasury, 
    464 Mich 548
    , 557-558; 629 NW2d 402 (2001).]
    The majority remarkably asserts that MCL 38.1343e is “unreasonable, arbitrary, and
    capricious,” and thereby not rationally related to a legitimate governmental interest.5 Yet, our
    Supreme Court clearly articulated a rational basis for MCL 38.1343e when it upheld the
    constitutionality of 
    2012 PA 300
    :
    The state’s purpose advanced by the challenged portions of 
    2012 PA 300
    —implementing a fiscally responsible system by which to fund public school
    employees’ retiree healthcare—is unquestionably legitimate. It is entirely proper
    for the state to seek the continuation of an important retirement benefit for its
    public school employees while simultaneously balancing and limiting a strained
    public budget. The means used by the state—the retiree healthcare modifications
    made by 
    2012 PA 300
    —are also reasonably related to this purpose. It is
    altogether reasonable for the state to choose to maintain retiree healthcare benefits
    for all of its current public school retirees, and it is equally reasonable for the state
    to choose to maintain this program for current public school employees.
    Moreover, because the Legislature has deemed it fiscally untenable for the state to
    place the entire burden of providing these benefits on the taxpayers, it is also
    reasonable that the state would choose to have current public school employees
    assist in contributing to the costs of this program. If the state requires additional
    financial support to maintain the public school retiree healthcare system, which
    class of persons is more appropriate to assist in maintaining the fiscal integrity of
    this program than the participants themselves? We do not believe that the state or
    federal Constitutions require Michigan taxpayers to fund the entire cost of a
    retirement benefit for a discrete group of public employees. The state is not
    5
    The majority also seems to shift the burden onto defendants when it states that “[d]efendants
    posit no evidence or even argument to suggest that the funding of these retirement benefits could
    not have been satisfied by measures that do not raise due process concerns,” but this
    misconstrues where the burden lies. Under rational-basis review, the burden is on the party
    challenging the law. See Shepherd Montessori Ctr Milan v Ann Arbor Twp, 
    486 Mich 311
    , 319;
    783 NW2d 695 (2010); People v Idziak, 
    484 Mich 549
    , 570; 773 NW2d 616 (2009); TIG Ins Co,
    464 Mich at 557-558.
    -13-
    generally constrained from modifying its own employee benefits programs to
    accommodate its fiscal needs. [AFT Mich, 497 Mich at 248.]
    Notably, from the Supreme Court’s rationale, the voluntary or mandatory nature of the
    contributions is not relevant. Whether analyzed under 
    2012 PA 300
     or 
    2010 PA 75
    , the state has
    an “unquestionably legitimate” interest in “implementing a fiscally responsible system by which
    to fund public school employees’ retiree healthcare.” 
    Id.
     Further, under 
    2010 PA 75
    , every
    public school employee contributed to the system because every public school employee had the
    potential to obtain retiree healthcare benefits. Accordingly, it is entirely “reasonable that the
    state would choose to have current public school employees assist in contributing to the costs of
    the program.” 
    Id.
     Certainly, mandatory contributions to the retiree healthcare system are a
    “fiscally responsible system by which to fund public school employees’ retiree healthcare.” 
    Id.
    Again, the fact that there may have been better or less intrusive ways to accomplish this does not
    somehow transform the law into an unconstitutional deprivation of substantive due process. See
    TIG Ins Co, 464 Mich at 557; Crego, 
    463 Mich at 260
    .
    Accordingly, I would reverse the trial court’s grant of summary disposition to plaintiffs
    on the substantive due process claims.
    VI. CONCLUSION
    To discharge their solemn duty under the Constitution, courts must invalidate clearly
    unconstitutional legislation but must also defer to the Legislature when the public policy is one
    that may offend the litigants, but not the Constitution. Here, because (1) the challenged public
    policy does not even touch upon, much less impair, contracts, (2) no property is taken by the
    state in the sense contemplated by the Fifth Amendment, and (3) the Legislature has a rational
    basis for enacting 
    2010 PA 75
    , it would have been prudent and in keeping with our Court’s
    limited charge under the Constitution to uphold this legislation as constitutional.6
    /s/ Henry William Saad
    6
    Additionally, assuming MCL 38.1343e is unconstitutional, I would not summarily order the
    specific remedy of returning the retained funds as the majority does, especially when the parties
    themselves have not briefed this particular issue. Instead, I would remand to allow the trial court
    to determine the proper measure of damages in light of the retiree health care components and
    the nature of the specific constitutional infirmity.
    -14-