Straus v. Governor , 459 Mich. 526 ( 1999 )

592 N.W.2d 53 (1999) 459 Mich. 526

Kathleen N. STRAUS, Barbara Roberts Mason, Marianne McGuire, and Herbert Moyer, Plaintiffs-Appellants,
v.
GOVERNOR, Defendant-Appellee.

Docket No. 112401, Calendar No. 2.

Supreme Court of Michigan.

Argued November 9, 1998. Decided April 27, 1999.

Mark H.Cousens, Southfield, MI;Sachs, Waldman, O'Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Ellen Gurewitz), Detroit, MI; and White, Przybylowicz, Schneider & Baird, P.C. (by Arthur R. Przybylowicz), Okemos, MI, for plaintiffs-appellants.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Thomas R. Wheeker, Assistant Attorney General, Lansing, MI, for the defendant-appellee.

Linda L. Bruin, Lansing, MI, amici curiae, for Michigan Association of School Boards.

Collins, Blaha & Slatkin (by William J. Blaha) Southfield, MI, amici curiae, for Michigan Congress of Parents, Teachers and Students (Michigan PTA).

PER CURIAM.

The Court of Appeals upheld the constitutionality of two gubernatorial executive orders that transferred functions from the State Board of Education to the Superintendent of Public Instruction. 230 Mich.App. 222, 583 N.W.2d 520 (1998). We affirm. MCR 7.302(F)(1). In doing so, we adopt as our own the following opinion of the Court of Appeals.

* * *

In this appeal of right, plaintiffs, elected members of the State Board of Education (hereafter the board), challenge, as being in excess of the authority vested in the Governor by Const 1963, art 5, § 2, and as being in derogation of the board's inherent constitutional prerogatives under Const 1963, art 8,§ 3, the actions of the Governor in promulgating Executive Orders Nos.1996-11 and 1996-12. These orders transfer various powers of the board to the Superintendent of Public Instruction. The Ingham Circuit Court agreed with plaintiffs' contentions, and, on cross-motions for summary disposition, MCR 2.116(C)(8) and (10), issued a declaratory judgment and permanent injunction against the implementation of these orders. We reverse.

I. FACTS AND BACKGROUND INFORMATION

The facts in this matter are not in dispute. On December 19, 1996, the Governor issued Executive Order No.1996-11, which transferred "all of the administrative statutory powers, duties, functions and responsibilities" of the board to the superintendent by a "Type II transfer."^[1] In effect, Executive Order No.1996-11 made the superintendent, rather than the board, the administrative head of the Department of Education. This order was to become effective March 10, 1997.

Also on December 19, 1996, the Governor issued Executive Order No.1996-12. Section 1 of this order transferred "all of the administrative statutory powers, duties, functions, and responsibilities" of the board, as set forth in approximately one hundred different sections of the Michigan Compiled Laws, to the superintendent by a "Type II transfer." Section 2 transferred "[a]ll of the statutory rule making powers, duties, functions, and responsibilities" of the board, as set forth in an additional approximately thirty-nine sections of the Michigan Compiled Laws, to the superintendent by a "Type II transfer." Section 3 stated that "all the statutory policy making powers, duties, functions, and responsibilities" of the board, as set forth in approximately thirty-six different sections of the Michigan Compiled Laws, "shall remain with the State Board of Education." Executive Order No.1996-12 was to become effective July 1, 1997.

Given the nature of the case before us, we must take note of the limits of judicial competence in such matters. We cannot serve as political overseers of the executive or legislative branches, weighing the costs and benefits of competing political ideas or the wisdom of the executive or legislative branches in taking certain actions, but may only determine whether some constitutional provision has been violated by an act (or omission) of the executive or legislative branch. As has been long recognized, when a court confronts a constitutional challenge it must determine the controversy "stripped of all digressive and impertinently heated veneer lest the Court enter—unnecessarily this time—another thorny and trackless bramblebush of politics." Taylor v. Dearborn Twp., 370 Mich. 47, 50, 51-52, 120 N.W.2d 737 (1963) (BLACK, J., joined by T.M. KAVANAGH, J.). Indeed, it is clear that issues of motive underlying the contested action are not justiciable. See also Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (noting that it is "not consonant with our scheme of government for a court to inquire into the motives of legislat[ors]").

II. STANDING^[*]

As a threshold matter, we address plaintiffs' standing to maintain this suit and our jurisdiction to issue injunctive relief against the Governor. Plaintiffs represent precisely one-half the membership of the State Board of Education. Voting as a bloc, plaintiffs have the ability to either determine the result of any matter coming before the board, by convincing one other member to join them, or to create an impasse if all other members of the board seek an opposite outcome. However, under Executive Orders Nos.1996-11 and 1996-12, plaintiffs' ability to forestall action by the board in the exercise of statutorily delegated powers is limited because the superintendent may act unilaterally (unless a majority of the board directs otherwise). This arguable diminution in plaintiffs' collective influence and official power suffices, in our view, to confer standing on them to pursue this challenge. House Speaker v. State Administrative Bd., 441 Mich. 547, 556, 495 N.W.2d 539 (1993); see also Raines v. Byrd, 521 U.S. 811, 822-823, 117 S.Ct. 2312, 2319, 138 L.Ed.2d 849 (1997).

We would also note that, because a court at all times is required to question sua sponte its own jurisdiction (whether over a person, the subject matter of an action, or the limits on the relief it may afford), Fox v. Univ. of Michigan Bd. of Regents, 375 Mich. 238, 242, 134 N.W.2d 146 (1965), we have some doubt with respect to the propriety of injunctive relief against the Governor. It is clear that separation of powers principles, Const 1963, art 3, § 2, preclude mandatory injunctive relief, mandamus, against the Governor. People ex rel Sutherland v. Governor, 29 Mich. 320, 18 Am. Rep. 89 (1874). Whether similar reasoning also puts prohibitory injunctive relief beyond the competence of the judiciary appears to be an open question that need not be resolved in this case.We do note that the Supreme Court has recently recognized that declaratory relief normally will suffice to induce the legislative and executive branches, the principal members of which have taken oaths of fealty to the constitution identical to that taken by the judiciary, Const 1963, art 11, § 1, to conform their actions to constitutional requirements or confine them within constitutional limits. Durant v. Michigan, 456 Mich. 175, 205, 566 N.W.2d 272 (1997). Only when declaratory relief has failed should the courts even begin to consider additional forms of relief in these situations. Id. at 206, 566 N.W.2d 272. The need for utmost delicacy on the part of the judiciary, and respect for the unique office of Governor, was similarly recognized in People ex rel Johnson v. Coffey, 237 Mich. 591, 602, 213 N.W. 460 (1927):

The governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives, and unseemly and unlawful to invade his discretion.

III. STANDARD OF REVIEW

This case is before us on cross-motions for summary disposition, MCR 2.116(C)(8) and (10). We review a trial court's ruling on a motion for summary disposition de novo. G & A, Inc. v. Nahra, 204 Mich.App. 329, 330, 514 N.W.2d 255 (1994). Indeed, summary disposition under either MCR 2.116(C)(8) or (10) will always present an issue of law for our determination. Nahra, supra at 330, 514 N.W.2d 255.

IV. ANALYSIS

When reviewing constitutional provisions, the objective of such review is to effectuate the intent of the people who adopted the constitution. Livingston Co. v. Dep't of Management & Budget, 430 Mich. 635, 641-642, 425 N.W.2d 65 (1988). The lodestar principle is that of "common understanding," the sense of the words used that would have been most obvious to those who voted to adopt the constitution.^[2]House Speaker v. Governor, 443 Mich. 560, 577, 506 N.W.2d 190 (1993). Where, as here, there is a claim that two different provisions of the constitution collide, we must seek a construction that harmonizes them both. This is so because, both having been adopted simultaneously, neither can logically trump the other. Kunzig v. Liquor ControlComm., 327 Mich. 474, 480-481, 42 N.W.2d 247 (1950).

The Governor's power under Const 1963, art 5,§ 2, as has been noted, is nearly plenary.^[3] In the absence of a legislative veto within sixty days during a regular session (or a full regular session of shorter duration), the Governor, by executive order submitted to the Legislature, may make changes in the organization of the executive branch or in the assignment of functions among its units that the Governor considers necessary for efficient administration. This power includes the authority to delegate, assign, or transfer existing power, responsibility, or authority within, among, or across not more than twenty principal departments. The Governor's power is limited only by constitutional provisions that would inhibit the Legislature itself. House Speaker v. Governor, supra at 578-579,506 N.W.2d 190; Morris v. Governor, 214 Mich.App. 604, 608, 543 N.W.2d 363 (1995). Because the Governor's action has the status of enacted legislation, it is entitled to the same presumption of constitutionality that an equivalent statute would enjoy. Therefore, the judiciary should construe the executive orders as constitutional unless unconstitutionality clearly appears. Mahaffey v. Attorney General, 222 Mich.App. 325, 344, 564 N.W.2d 104 (1997) (statutes should be construed as constitutional unless unconstitutionality is clearly apparent).

The board is a constitutional authority, empowered with "[l]eadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees." Const 1963, art § 3.^[4] The board serves "as the general planning and coordinating body for all public education, including higher education," and as advisor to "the legislature as to the financial requirements in connection therewith." Const 1963, art 8, § 3, cl 1. The board consists of eight members nominated by party conventions and elected at large for terms of eight years as prescribed by law. Id., § 3, cl 3. The superintendent is appointed by the board, serves as its chairperson, but without voting rights, and is imbued by the constitution with responsibility for execution of board policies. Id., § 3, cl 2. The Governor serves as an exofficio member of the board, without the right to vote. Id., § 3, cl 3. As are all such administrative agencies, the board is part of the executive branch of government.^[5]Judges of the 74th Judicial Dist. v. Bay Co., 385 Mich. 710, 727, 190 N.W.2d 219 (1971).

Nonetheless, plaintiffs contend that the board is not part of or within the executive branch. In this regard, we note that Const 1963, art 3, § 2 provides that the powers of government are divided into three branches: legislative, executive, and judicial. In Federated Publications v. Michigan State Univ. Bd. of Trustees, 221 Mich.App. 103, 113, 561 N.W.2d 433 (1997),^[**] [the Court of Appeals] dealt with a somewhat similar argument, to the effect that the Open Meetings Act, M.C.L. § 15.261 et seq.; MSA 4.1800(11) et seq., does not apply to public universities that were asserted to be "coequal branches of government." [The Court of Appeals] responded unequivocally:

We disagree. In In re 1976 PA 267, [400 Mich. 660, 255 N.W.2d 635 (1977) ], the Court noted that the powers of government were divided among three branches of government pursuant to Const 1963, art 3, § 2. It further noted that the separation of powers set forth in the constitution was "designed to preserve the independence of the three branches of government." Id. at 662 [255 N.W.2d 635]. Although various cases have stated that public universities are branches of government coequal with the Legislature, the constitution does not contain any provision that elevates them to a fourth branch of government. See Walker v. Wolverine Fabricating Mfg. Co., Inc., 425 Mich. 586, 607, 391 N.W.2d 2[9]6 (1986). Because autonomous state universities have not achieved that status under the constitution, In re 1976 PA 267 is inapplicable to this case.Federated Publications, supra at 113-114, 561 N.W.2d 433 (emphasis in original).]

We apply the same reasoning here. The board is not a fourth branch of government. To so hold would be to directly contravene the plain meaning of Const 1963, art 3, § 2. Further, the board is not a part of the legislative or the judicial branch. Rather, the board is part of and within the executive branch, albeit as a constitutionally created entity with five specifically delineated, and therefore constitutionally inviolable, functions.^[6] In this regard, the constitutional location of the board's functions within the executive branch is similar to that of the State Transportation Commission, under Const 1963, art 5, § 28, the Civil Rights Commission, under Const 1963, art 5, § 29, and the Civil Service Commission, under Const 1963, art 11, § 5.^[7] The constitution contains specific requirements relating to the Department of Education. Const 1963, art 8, § 3, cl 2 specifies that the superintendent "shall be the principal executive officer of a state department of education which shall have powers and duties provided by law." This must be read as some limitation on the Governor's generally plenary power under Const 1963, art 5, § 2, subject to veto by joint legislative resolution, to reorganize state government into not more than twenty principal departments. It may be logically concluded, given the fact that the Department of Education is specifically mentioned in the constitution, that the department is one of the twenty "principal departments."

The parties do not suggest that the executive orders at issue engender a violation of the constitutional limitation to twenty principal departments. Similarly, the parties do not suggest that the Governor sought to implement such orders before the expiration of the constitutionally prescribed sixty regular legislative session days or a full regular session of shorter duration. Finally, the parties do not suggest that the Legislature, by concurrent resolution of a majority of the members elected to and serving in each house, disapproved either or both of the executive orders on the basis of a concern about the board's constitutional prerogatives or authority.

The executive orders at issue transfer a variety of statutory powers, both administrative and regulatory, from the board to the superintendent. Both orders explicitly provide:

Nothing in this Executive Order should be construed to diminish the constitutional authority of the State Board of Education to provide leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, and its authority to serve as the general planning and coordinating body for all public education including higher education, and to advise the legislature as to the financial requirements in connection therewith. [Executive Order No. 1996-11, ¶2; Executive Order No. 1996-12, ¶ 5.] Executive Order No. 1996-12 additionally specifies that the board "shall retain its policy making authority with regard to these statutory provisions by determining the policies, if any, on which the administration of these provisions shall be based."

The first factor critical to our determination is that the executive orders only address the powers and duties that are conferred upon the board by statute. Contrary to plaintiffs' assertion, the Governor did not transferconstitutionally granted functions from one executive branch agency, board, or entity to another. Const 1963, art 8, § 3 does not state that the board is to be the head of the Department of Education. Rather, this language is contained in § 301 of the Executive Organization Act of 1965, M.C.L. § 16.401; MSA 3.29(301).^[8] Similarly, the functions transferred by Executive Order Nos.1996-11 and 1996-12 were created by the Legislature through enactment of the relevant statutes, not by the people directly through adoption of Const 1963, art 8, § [3].^[9]

Therefore, the board is not constitutionally required, as part of its function of providing leadership and general supervision over all public education, to head the Department of Education. We believe it axiomatic that the Governor may, under Const 1963, art 5, § 2, cl 2, alter the current scheme and vest that function in the superintendent. Because the Legislature could have delegated such powers to the superintendent ab initio, the Governor is free to redistribute those powers within the Department of Education in any manner in which the Legislature could have assigned such authority originally or by amendment. See House Speaker, supra.

We note that plaintiffs' counsel at oral argument appeared to concede that the Legislature could constitutionally repeal the sections of the statutes delineating the functions that Executive Order No.1996-12 transferred. Counsel was unwilling to concede, however, that the Legislature could constitutionally transfer such functions away from the board. Clearly, plaintiffs are standing on unstable ground. Because the Legislature originally enacted these statutory provisions, there can be no constitutional bar to a later repeal. Equally clearly, such a repeal would not impinge upon the board's constitutional function of leadership and general supervision over public education.

We also believe it clear that the Legislature could constitutionlly transfer functions that it had previously vested in the board. Indeed, we see no functional difference between a repeal of such functions and a transfer of such functions. Here, the transfers in question were accomplished by executive order rather than legislative action but, as noted above, under House Speaker, supra, and Morris, supra, when the Legislature allocates a function, the Governor may thereafter change that allocation through the exercise of the Governor's reorganization powers under Const 1963, art 5, § 2, cl 2. As House Speaker, supraat 579, 495 N.W.2d 539, specifically held:

The constitution, then, specifically recognizes that, where the Governor feels compelled to make certain changes within the executive branch, he has authority, through the executive order procedure, in effect, to enact laws to carry out those changes. The only way to preclude such changes is through a properly supported legislative veto. In other words, after the initial executive branch organization, the Governor's reorganization powers are equal to the Legislature's initial and subsequent reorganization powers. [Emphasis added.]^[10]

Simply put, and as argued by the Governor, if the Legislature can place a statutory function within an executive branch agency, board, or entity, the Governor by executive order may transfer the function to another executive branch agency, board or entity.^[11]

Plaintiffs also argue that contemporaneous legislative (i.e., the enactment of § 301 of the Executive Organization Act of 1965) and gubernatorial (i.e., the issuance of Executive Order No.1965-9) actions constitute "understandings" that Const 1963, art 8, § 3 should be read as requiring the board to be the head of the Department of Education. We disagree. Rather, we regard these actions not as signaling a contemporaneous understanding that the constitution requires such an outcome but rather as expressing a policy determination that such an outcome was then desirable. Under Const 1963, art 3, § 2, we do not function as reviewers of such policy determinations, whether they are made by the legislative or executive branch, and we therefore express no opinion with respect to the wisdom, or lack thereof, of making the superintendent the head of the Department of Education. Rather, we hold that the constitution does not require that the board function in this capacity.^[12]

By expressly declaring that the board may continue to set policies pursuant to which the superintendent shall carry out these various statutorily created responsibilities, the Governor has merely shifted legislatively delegated authority from the board to the superintendent. In no perceptible way does this facially infringe any of the board's constitutional powers or prerogatives under Const 1963, art 8, § 3. Indeed, Executive Order No.1996-12 specifically provides that the board shall retain its statutory policy-making powers, duties, functions, and responsibilities. Because the Governorhas protected the ultimate authority of the board with apparent fidelity to Const 1963, art 8, § 3, no improper transfer of its powers or diminution of its ultimate responsibilities has occurred. See Bays v. Dep't of State Police, 119 Mich.App. 719, 721-722, 326 N.W.2d 620 (1982) (no improper delegation of decisionmaking power of the Civil Service Commission where it retained "ultimate power over those decisions with which it is charged").

Our second major area of analysis concerns whether the Governor's actions divest the board of "control" over the system of public education in Michigan. We do not believe that the Governor has divested the board of ultimate control or that the Governor's actions limit that control in violation of Const 1963, art 8, § 3.

The party challenging the facial constitutionality of an act "must establish that no set of circumstances exists under which the [a]ct would be valid. The fact that the ... [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient...." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Further, "if any state of facts reasonably can be conceived that would sustain [an act], the existence of the state of facts at the time the law [or, here, an executive order] was enacted must be assumed." 16 Am Jur 2d, Constitutional Law, § 218, p. 642. In addition, "[a] statute [or, here, an executive order] may be constitutional although it lacks provisions which meet constitutional requirements, if it has terms not excluding such requirements, and in this situation the court is justified in holding that the statute was intended to be subject to such requirements, and that those requirements are to be considered as embodied in the statute." Id., § 225, p. 659.^[13]

Here, Executive Order No.1996-11 states that nothing within it is to be construed to diminish the constitutional authority of the board to provide leadership and general supervision over all public education. Thus, the terms of the executive order specifically include the requirements of Const. 1963, art. 8, § 3. Additionally, we can easily conceive of a state of facts in which the superintendent exercises the administrative functions of the head of the Department of Education while the board continues to exercise its leadership and general supervision over public education. Indeed, construing Executive Order No.1996-11 in its entirety, we conclude that this is what the Governor intended. Executive Order No.1996-11 basically involves the internal organization of the Department of Education and, as such, would have minimal effect on the functioning of the board. It would also appear to be exactly the type of transfer envisioned by Const 1963, art 5, § 2 and House Speaker, supra. We do not discount the fact that the superintendent, or his successor(s), could, conceivably and at some time in the future, encroach upon the board's constitutionally granted functions. However, unless and until such an encroachment actually occurs, the issue is not ripe for adjudication. General Motors Corp. v. Attorney General, 294 Mich. 558, 568, 293 N.W. 751 (1940).

Similarly, we find no constitutional bar prohibiting the transfer of functions effectuated by Executive Order No.1996-12. As noted above, this order transfers the "administrative statutory powers, duties, functions and responsibilities" of the board to the superintendent. Plaintiffs argue that these transfers directly affect the authority of the board and are not "concerned with the organization and powers of the Department of Education." However, plaintiffs have not established that there is no set of circumstances under which the transfers would be valid and we note that, as with Executive Order No.1996-11, Executive Order No.1996-12 states that nothing within it is to be construed to diminish the constitutional authority of the board to provide leadership and general supervision over all public education. Furthermore, as noted above, Executive Order No.1996-12 explicitly provides that the board shall retain certain statutory policy-making powers and responsibilities.

In this respect, we note that there is no question that the board retains its constitutional authority to appoint the superintendent and to determine the superintendent's term of office and, by implication, this language suggests that the board also retains the power to shorten the term of office of the superintendent. The board also retains its statutory policy-making powers and its ability to provide "leadership and general supervision." These powers, retained by the board, certainly give the board authority over the superintendent and control over public education. We therefore, under the facts before us, find that ultimate control remains with the board.

In conclusion, we do not believe that either Executive Order No.1996-11 or Executive Order No.1996-12 facially^[14] infringes any of the board's constitutional powers or prerogatives under Const 1963, art 8, § 3. Given that the Governor has protected the board's ultimate authority over our educational system, we hold that the Governor has made no improper transfer of its powers or responsibilities. We further hold that the executive orders at issue are within the scope of the Governor's authority under Const 1963, art 5, § 2.

We reverse the decision of the circuit court and, pursuant to MCR 7.216(A)(7), grant a judgment of no cause for action in favor of the defendant. We also give this decision immediate effect pursuant to MCR 7.215(E)(2). We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a question of public significance being involved.

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

MICHAEL F. CAVANAGH, J. concurring in part and dissenting in part

I concur in the majority's determination that the Board of Education and the Department of Education are part of the executive branch. However, I cannot agree with its holding that Executive Orders 1996-11 and 1996-12 are constitutional. The majority does not give effect to the language of Const 1963, art 8, § 3 or to the historical circumstances surrounding its adoption. Article 8, § 3 explicitly vests the Board of Education with "[l]eadership and general supervision" over public education. It also subordinates the superintendent to the authority of the board, making him responsible for the execution of the board's mandates. I do not believe the Governor cannot subvert this constitutional structure by shifting responsibilities from the board to the superintendent. Therefore, I dissent.

I. The Governor's Authority Over the Executive Branch

I agree with the majority's holding that the board and the Department of Education are part of the executive branch of government, and, as such, are subject to the Governor's authority to reorganize the executive branch under Const 1963, art 5, § 2. House Speaker v. Governor, 443 Mich. 560, 587, 506 N.W.2d 190 (1993). The Governor may "enact laws affecting the executive branch, just as the Legislature can." Id. at 578, 506 N.W.2d 190. However, while the Governor's power to reorganize the executive branch is extensive, it is not absolute. First, the text of art 5, § 2 allows the Legislature to "veto" an executive order that it does not agree with. Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 752, 330 N.W.2d 346 (1982).^[1] Second, and relevant to this case, the Governor must work within the confines of the constitution itself. He cannot use his organizational powers to intrude into another constitutional body's "sphere of authority." Council No. 11, AFSCME v. Civil Service Comm., 408 Mich. 385, 408, 292 N.W.2d 442 (1980).

The majority relies on the Governor's argument that he is within his art 5, § 2 power because the executive orders at issue only involve the transfer of statutory functions. In addition, both of the orders specifically state "[n]othing in this executive order should be construed to diminish the constitutional authority of the State Board of Education to provide leadership and general supervision over all public education...." However, such superficial arguments fail to give weight to the constitutional authority vested in the Board of Education. The Governor cannot reorganize the Department of Education in such a way that infringes the board's constitutional role, regardless of whether the executive order purports merely to shift "statutory" functions. House Speaker, 443 Mich. at 592, 506 N.W.2d 190. If the board's position as the head of the Department of Education is mandated by the constitution, as argued by plaintiffs, then the prior legislative^[2] and executive^[3] pronouncements are merely statements recognizing the structure of the Department of Education that is required by the constitution. Similarly, if the statutory duties placed on the board by the Legislature are mandated by the constitution, then they may not be shifted to another part of the executive branch. Moreover, the inclusion of the language "[n]othing in this Executive Order should be construed to diminish the constitutional authority of the State Board of Education" cannot save the executive order if it actually does infringe on the board's constitutional authority. See Council of Organizations and Others for Ed. About Parochiaid, Inc. v. Governor, 455 Mich. 557, 570, 566 N.W.2d 208 (1997) (in construing the constitutionality of a statute, the reviewing court must examine the statute's requirements rather than the method by which the statute is administered).

In short, determining whether the Governor was acting within his power under art 5, § 2 requires one to analyze the relationship between the State Board of Education and the State Superintendent established in Const 1963, art 8,§ 3. If the executive orders in this case violate the respective powers and duties intended under that portion of the constitution, then the executive orders cannot stand.

II. Const 1963, art 8, § 3 and the Authority of the Board of Education

The respective duties of the Board of Education and the Superintendent of Public Instruction are provided in Const 1963, art 8, § 3. That constitutional provision provides in pertinent part:

Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith.

The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.

The dispute in the present case centers on the meaning of "[l]eadership and general supervision over all public education." Plaintiffs argue that by vesting the board with"[l]eadership and general supervision," the constitution gives the board broad powers to control public education in the state. This power requires that the board head the Department of Education, and the superintendent is designed to serve the board by executing its directives. Defendant, on the other hand, argues that "[l]eadership and general supervision" gives the board a more remote, policy-making function, while the superintendent is responsible for the day-today operation and administration of the Department of Education.

A. Rules of Constitutional Construction

When interpreting the constitution, a reviewing court must first examine the "common understanding" of its language. Traverse City School Dist. v. Attorney General, 384 Mich. 390, 405, 185 N.W.2d 9 (1971). This is because "``[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.'" Id. (emphasis deleted). If the meaning of the words used is clear, then the court need not look any further. Attorney General v. State Bd. of Assessors, 143 Mich. 73, 76-77, 106 N.W. 698 (1906). Where, however, there is no clear common understanding from the language used, the court may also look to "the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished" by the provision. Council of Organizations, 455 Mich. at 569, 566 N.W.2d 208; Kearney v. Bd. of State Auditors, 189 Mich. 666, 673, 155 N.W. 510 (1915).

B. Text of Const 1963, art 8, § 3

The majority gives too little weight to the verbiage used in art 8, § 3. While the constitution does not specifically state that the Board of Education is to "head" the Department of Education, it does vest the board with "[l]eadership and general supervision over all public education." I believe the common understanding of these terms means that the board must be in charge of, direct, and control public education. Justice Black's concurrence in Welling v. Livonia Bd. of Ed., 382 Mich. 620, 625, 171 N.W.2d 545 (1969), explained that through the adoption of the 1963 Constitution:

[T]he framers proposed and the people adopted a new policy for administration of the system. Now the State board of education, unfettered by those qualifying words "prescribed by law" or "provided by law," is armed and charged exclusively with the power and responsibility of administering the public school system which the legislature has set up and now maintains pursuant to section 2 of the eighth article. By section 3 of the same article, the board has been directed—not by the legislature but by the people—to lead and superintend the system and become, exclusively, the administrative policy-maker thereof.

See also Council of Organizations, 455 Mich. at 588, 566 N.W.2d 208 (Cavanagh, J., concurring) ("The term ``control' is synonymous with the constitutional phrase ``[l]eadership and general supervision,' Const 1963, art 8, § 3, in the context of public education").

Indeed, the verb "lead" is commonly defined as to "direct the operations, activity, or performance of," to "have charge of," or to "go at the head of." Webster's Ninth New Collegiate Dictionary, p. 679. Supervise is to "superintend" or to "oversee." Id. at 1185. To give effect to these terms, the board must be placed in a position to "lead" and "supervise" public education. To the extent that the Department of Education is the body that is in charge of executing educational programs mandated and funded by the Legislature, the board must maintain a position within that department that allows it to lead and supervise. In other words, the board must act as the head of the Department of Education so that it may carry out its constitutional mandate. Any other structure would undermine the language of art 8, § 3.

This provision also defines the duties of the State Superintendent of Education. The superintendent is responsible for the execution of the board's mandates, and serves as the principal executive officer of the State Department of Education. Significantly, the provision does not place the superintendent as the "head" of the Department of Education, but, rather, as the "principal executive officer." This language tracks that of the previous sentence, which makes the superintendent "responsible for the execution of [the board's] policies." Thus, the language of art 8, § 3 establishes the superintendent as the executive arm of the board and makes him responsible for implementation of the board's mandates. It does not contemplate an independent superintendent with authority outside that given by the board.

The language of art 8, § 3 establishes the Board of Education at the top of the education pyramid in this state. The superintendent follows next, and is charged with executing the mandates of the board. This structure requires the board to "lead" and "supervise" the Department of Education, because that is the department charged with executing educational programs throughout the state.^[4]

III. Circumstances Surrounding the Adoption of art 8, § 3

The majority also ignores the history and circumstances surrounding the adoption of art 8, § 3. This history and circumstances evidence a clear intent to establish an hierarchical relationship between the board and the superintendent where the superintendent's power and authority flow from the board. Thus, neither the Legislature nor the Governor should be able to alter this relationship by shifting authority for certain responsibilities from the board to the superintendent.

Before the 1963 Constitution, the Superintendent of Public Instruction was designated to supervise public education in the state. As explained by the Court of Appeals dissent:

Const 1835, art 10, § 1 provided for a Superintendent of Public Instruction, to be appointed by the Governor," "whose duties shall be prescribed by law." Const 1850, art 8, § 1 provided for the popular election of a Superintendent of Public Instruction who, under art 13, § 1, "shall have the general supervision of public instruction, and his duties shall be prescribed by law." Const 1850, art 13, § 9 also created an elected board charged with general supervision over the state normal school and other duties "prescribed by law." Const 1908, art 11, § 2 also provided for the popular election of the Superintendent of Public Instruction, giving him the responsibility for"general supervision of public instruction in the state"; Const 1908, art 11, § 6 also continued the limitation on the role of the elected board to supervision of the state normal college and the state normal schools and to such duties "prescribed by law." [230 Mich.App. at 248-249, 583 N.W.2d 520.]

However, Const 1963, art 8, § 3 substantially changed the relationship between the board and the superintendent. First, the board, rather than the superintendent, is responsible for the leadership and general supervision of public education. The superintendent is charged with executing the mandates of the board and is also assigned the position of "principal executive officer of a state department of education." Const 1963, art 8, § 3.

Indeed, this shift in power is one of the main themes running through the convention debates.^[5] For example, the committee on education stated in support of the proposed constitutional language:

The enlarged state board finally gives Michigan a policy making body on a state level similar to the local boards of education. Michigan is 1 of 3 states that does not have such a board. For many years there have been grave doubts about the advisability of policies and procedures determined by a superintendent of public instruction alone. [1 Official Record, Constitutional Convention 1961, pp. 1188-1189.]

Delegate Romney expounded on the transfer of power in his remarks:

The present constitution gives the superintendent of public instruction very broad authority over education, but he is not properly equipped either from the standpoint of staff and department or from the standpoint of ability to cover the full field to discharge that function. This contemplates the establishment of this board with these broad functions and, certainly, this provides a more suitable means of discharging these important functions. [Id. at 1190.]

Delegate Brake voiced his opinion that the Board of Education should be the dominant force in educational decision making:

[T]he 8 members of the board should lay down the policy to be followed by this board. They should make the decisions.555 They know what the problems are. They should be the dominant force.... My first premise is that the board ought to run this show.[[Id. at 1193.]

Thus, the 1963 Constitution contemplated a marked shift in power from the superintendent to the board. In particular, the power to implement "policies and procedures," id. at 1188, formerly determined by the superintendent was transferred to the board.^[6]

Second, the superintendent is no longer elected, but, rather, appointed by the board. The board also selects the term to be served as superintendent. Through this change, the superintendent is no longer directly accountable to the electorate. Instead, the superintendent's authority flows from the board.

Much of the debate at the constitutional convention focused on the change relative to the roles of the board and the superintendent and the source of the superintendent's authority under the new constitution. In particular, the delegates extensively debated a proposal to have the superintendent elected by the public to a four-year term rather than appointed by the board. Id. at 1212. The delegates supporting an elected superintendent were concerned that the superintendent derived his authority from the board as opposed to the electorate. As explained by the minority report of the education committee:

The heart of the question over whether or not the state superintendent of public instruction should be elected by the people or appointed by a state board of education is the question: is Michigan to have a strong superintendent of public instruction who is to be a policymaker by dint of his own strength as the choice of the people, or are we to have a superintendent who is granted his strength and guaranteed his weakness by virtue of the whim of a board of education which, even if elected, will by its very nature be more difficult to attune to the public will? [[Id. at 1189.]

The supporters of the amendment voiced concern over the weakened role of the superintendent. Delegate Douglas, one of the cosponsors of the amendment, opined:

[I]t is difficult for an appointed official to exert state educational leadership when each major decision must be reviewed and approved by his board. I ask you, with the committee proposal to whom is he responsible? He is not responsible to the people. He is not responsible to the governor. He is a creature of the board, and he is responsible to the board. Every time a major decision has to be made on the administrative board, he has to go back to those people who hired him. [[Id. at 1216.]

Another cosponsor, Delegate Hart, expressed her belief that

[i]n our new constitution the superintendent has been demoted.... The superintendent, then, is no longer a strong, independent head directly responsible to the people but he is an executive secretary who has no final voice in educational decisionmaking. He is a subservient agent. His position in the governor's cabinet is weakened because he no longer speaks for himself as a representative of the people. He may speak only for those whom he represents: the 8 members of the state board. [2 Official Record, Constitutional Convention 1961, p. 3147.]

However, the delegates rejected the concerns of Delegates Hart and Douglas by giving the board the power to appoint. The delegates also rejected a similar proposal that would have changed the provision so that the superintendent was appointed by the Governor with the advice and consent of the Board of Education. See 1 Official Record at 1219-1221. In doing so, the delegates reinforced the hierarchical structure presented by the language of art 8, § 3. The superintendent is the executive arm of the Board of Education, and derives authority from the board. The superintendent does not have independent authority derived from the electorate or the Governor.

Third and finally, neither the board nor the superintendent has duties "proscribed by law" as they did in previous constitutions. Instead, the 1963 Constitution recognizes four broad functions of the board: (1) exercising leadership and general supervision over all public education, (2) serving as the general planning and coordinating body for all public education, (3) advising the Legislature regarding the financial requirements in connection with public education, and (4) appointing the superintendent and determining the term of office. The superintendent's responsibilities are limited to serving as the executive arm of the board and the Department of Education.

1963 Const, art 8, § 3 does provide that the Department of Education "shall have powers and duties provided by law." The Legislature, and in some circumstances the Governor, is afforded some authority over the Department of Education through this language.^[7] However, that authority may not be used in a manner that undercuts the constitutionally mandated relationship between the board and superintendent. See OAG, 1965-1966, No. 4530, pp. 300, 307 (June 1, 1966) (The Legislature is "without power to prescribe the qualifications for the office of superintendent" because that power is specifically given to the board under art 8, § 3).

In sum, the language of the 1963 Constitution, and circumstances surrounding its adoption, evidence an intention to establish an hierarchical relationship between the board and the superintendent. The superintendent, as the executive arm of the board, derives authority from the board, and not from an independent source such as the Governor or the Legislature.

IV. Application of these Principles to the Proposed Reorganization

As explained above, the power of leadership and general supervision vested in the Board of Education necessarily requires that the board also serve as the head of the Department of Education. Executive Order 1996-11 effectively undermines the board's position as the head of the Department of Education. First, it rescinds Executive Order 1965-9, which established the board as the head of the Department of Education. And, second, it transfers all "administrative statutory powers, duties, functions and responsibilities" from the board to the superintendent. Under the order, the only connection the board has to the Department of Education is through the power to appoint the superintendent.

I agree with the dissent in the Court of Appeals that Executive Order 1996-11 "would essentially eliminate the transfer of power voted on by the people when they voted for the 1963 constitution and would render the transfer meaningless." 230 Mich. App. at 255, 583 N.W.2d 520. Thus, I would find Executive Order 1996-11 to be unconstitutional on its face.

Similarly, the attempted transfer of specific statutory functions from the board to the superintendent within Executive Order 1996-12 is in violation of the hierarchical relationship established between the board and the superintendent in art 8, § 3. The superintendent, as the executive arm of the board, derives authority from the board. The superintendent's executive duties within the Department of Education are also subject to the oversight and authority of the board as the head of that department. Thus, the Legislature may proscribe functions for the Department of Education to carry out, but it may not specifically pvest the authority over those functions in the superintendent. Likewise, the Governor may not shift those legislatively proscribed functions from the board to the superintendent. Rather, it is for the board to determine which legislatively proscribed functions to delegate to the superintendent as its executive arm. Therefore, I would also find Executive Order 1996-12 unconstitutional on its face.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] Pursuant to M.C.L. § 16.103(b); MSA 3.29(3)(b), a "type II transfer" allows the transferring of an existing board to a principal department.

[*] Defendant has not filed a cross appeal challenging the Court of Appeals standing determination.

[2] Both sides have cited portions of the "Address to the People" and the record of the Constitutional Convention, both of which may properly be considered in interpreting constitutional provisions. Bingo Coalition for Charity-Not Politics v. Bd. of State Canvassers, 215 Mich.App. 405, 410, 546 N.W.2d 637 (1996). However, nowhere was this precise issue considered or discussed, and what remains is too ambiguous and short-lived to serve as a reliable basis for resolution of the issue confronting us, particularly when the constitutional phraseology at issue is, in our view, straightforward in meaning and application on the record before us. See Doe v. Dep't of Social Services, 439 Mich. 650, 672-674, 487 N.W.2d 166 (1992).

[3] Const 1963, art 5, § 2, provides:

All executive and administrative offices, agencies and instrumentalities of the executive branch of state government and their respective functions, powers and duties, except for the office of governor and lieutenant governor and the education provided for in this constitution, shall be allocated by law among and within not more than 20 principal departments. They shall be grouped as far as practicable according to major purposes.

Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor.

[4] Const 1963, art 8, § 3 provides, in part:

Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith.

The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.

[5] Because members of the board are neither appointed nor directly overseen by the Legislature or the judiciary, the board must be part of the executive branch. There is no fourth branch of government. Walker v. Wolverine Fabricating & Mfg., Inc., 425 Mich. 586, 607, 391 N.W.2d 296 (1986); Civil Service Comm. v. Auditor General, 302 Mich. 673, 682, 5 N.W.2d 536 (1942).

[**] This Court has granted leave to appeal in Federated Publications. 458 Mich. 865, 582 N.W.2d 836 (1998).

[6] These functions are (1) to exercise "leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees," (2) to serve "as the general planning and coordinating body for all public education, including higher education," (3) to "advise the legislature as to the [financial] requirements in connection therewith," (4) to appoint the superintendent, and (5) to determine the term of office of the superintendent. Const 1963, art 8, § 3.

[7] We note that the Civil Service Commission's functions are not set out in the article of Const 1963 dealing with the executive branch but in the article dealing with public officers and employment. However, in Reed v. Civil Service Comm., 301 Mich. 137, 152, 3 N.W.2d 41 (1942), the Michigan Supreme Court, in construing the 1941 amendment to Const 1908 that created the Civil Service Commission as a constitutional rather than a statutory entity, referred to "rights ... affected by the arbitrary or unreasonable action of an administrative agency." (Emphasis supplied.) The logical repository for administrative, as compared to legislative or judicial, functions is in the executive branch. But see the concurrence of CHANDLER, C.J., joined by BUSHNELL, J.:

Unquestionably the civil service commission is a constitutional body possessing plenary power. In its acts it is not subject to control or regulation by either [sic] the executive, legislative or judicial branch of our State government.[[Reed, supra, at 163, 3 N.W.2d 41.]

See also Viculin v. Dep't of Civil Service, 386 Mich. 375, 385-386, n. 11, 192 N.W.2d 449 (1971) (boards and commissions created throughout the constitution are administrative bodies), Judges of the 74th Judicial Dist, supra at 727, 190 N.W.2d 219 (administrative agencies are part of the executive branch of government).

[8] As noted by plaintiffs, Lieutenant and Acting Governor William Milliken in Executive Order No. 1965-[9](1) established the Department of Education in the executive branch, (2) established the state board as the head of the Department of Education, (3) established the superintendent as the principal executive officer of the Department of Education, and (4) stated that, "[T]he state board of education is hereafter responsible for carrying out the functions, duties, and responsibilities of the department of education in accordance with the constitution and the statutes of this state." As noted in House Speaker, supra, at 579, 495 N.W.2d 539, when the Governor makes changes within the executive branch through the executive order procedure, he has the authority, in effect, to enact laws to carry out those changes. See also Morris, supra at 612, 543 N.W.2d 363, quoting House Speaker to the effect that the Governor's reorganization powers are equal to the Legislature's initial and subsequent reorganization powers. Thus, we consider Lieutenant and Acting Governor William Milliken's actions in Executive Order No. 1965-[9] to be equivalent to the Legislature's actions in § 301 of the Executive Organization Act of 1965.

[9] Executive Order No.1996-11 transfers "administrative statutory powers, duties, functions and responsibilities" of the board. These "statutory powers" are found in M.C.L. § 16.401; MSA 3.29(301), M.C.L. § 16.107(a); MSA 3.29(7)(a), and M.C.L. § 16.109; MSA 3.29(9). Section 1 of Executive Order No.1996-12 transfers approximately one hundred "administrative statutory powers, duties, functions, and responsibilities" of the board, as found in the relevant provisions of the Michigan Compiled Laws. Section 2 transfers the board's "statutory rule making powers, duties, functions, and responsibilities" as found in approximately thirty-nine provisions of the Michigan Compiled Laws. The statutory sections cited in Executive Order No.1996-12 are simply too numerous to cite in this opinion.

[10] See also Morris, supra at 609, 543 N.W.2d 363:

[T]he Governor's reorganization powers are equal to the Legislature'sinitial as well as subsequent reorganization powers. In other words, when the Governor acts under this constitutional provision by means of an executive order, and that order is not overturned by the Legislature, it is as if the Legislature had acted. [First emphasis in original; second emphasis supplied.]

[11] The affidavits that plaintiffs Kathleen Straus and Barbara Roberts Mason submitted to the lower court do not alter our conclusion. We first note that these affidavits contain a mixture of fact and opinion. Secondly, and perhaps more importantly, while these affidavits describe the current process by which the board carries out its legislatively derived functions, it does not logically follow that such functions are inherent to, and therefore inseparable from, the board's constitutionally derived functions. Therefore, we do not agree that these affidavits support a finding, advanced by plaintiffs, that the executive orders transferred "all powers which are a necessary incident of the [State] Board's overarching power or duty to exercise leadership and general supervision [over] all public education in [the State of] Michigan." (Emphasis supplied.)

[12] In this regard, we note that the Address to the People accompanying Const 1963, art 8, § 3 stated that "The superintendent would be considered as administrative head of a state department of education and as such [sh]ould be a staff officer to the governor and on his administrative board." (Emphasis supplied.)

[13] Quoted with approval in Council of Organizations v. Governor, 455 Mich. 557, 568-569, 566 N.W.2d 208 (1997).

[14] We are not blind to the possibility that the superintendent could exceed these boundaries. However, we have no reason to anticipate that such a public officer will engage in ultra vires actions. Furthermore, on proper complaint, the judiciary will inquire into the matter and, if the board's constitutional prerogatives have been invaded, redress the infringement. Until such time, no such issue is ripe for adjudication. United Public Workers of America (CIO) v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 91 L.Ed. 754 (1947); General Motors, supra at 568, 293 N.W. 751. Where a constitutional question is presented anticipatorily, the Court is required by the limits on its authority to decline to rule. Sullivan v. Bd. of Dentistry, 268 Mich. 427, 429-430, 256 N.W. 471 (1934).

[1] No such legislative veto occurred in this case.

[2] MCL 16.405; MSA 3.29(305).

[3] Executive Order 1965-9.

[4] Two other provisions of the constitution contemplate the existence of an elected board heading an executive department. Article 5, § 3 states that "[w]hen a board or commission is at the head of a principal department, unless elected or appointed as otherwise provided in this constitution, the members thereof shall be appointed by the governor by and with the advice and consent of the senate." (Emphasis added.) The conventional comment accompanying this provision further explains that the Governor generally has the power to appoint boards, except "in the case ofelected boards and boards and commissions which have authority to name their executive heads." (Emphasis added.) The Board of Education is the only elected board under the 1963 Constitution. See Viculin v. Dep't of Civil Service, 386 Mich. 375, 385-386, n. 11, 192 N.W.2d 449 (1971). Therefore, art 5, § 3 seems to refer to the Board of Education as the head of the Department of Education.

Moreover, art 5, § 9 requires that "[s]ingle executives heading principal departments and the chief executive officers of principal departments headed by boards or commissions shall keep their offices at the seat of government...." (Emphasis added.) This section references exactly the structure contemplated by art 8, § 3—the department is headed by the Board of Education, and the superintendent is the principal executive officer.

[5] One of the most instructive sources for discerning the circumstances surrounding the adoption of a constitutional provision is the statements of constitutional delegates during the floor debates before passage of the provision. House Speaker, 443 Mich. at 580-581, 506 N.W.2d 190. While these statements are not decisive with respect to the meaning or intent of the people in ratification, they can provide important background and are particularly helpful when there is "``a recurring thread of explanation binding together the whole of a constitutional concept.'"Id. at 581, 506 N.W.2d 190 quoting Regents of the Univ. of Michigan v. Michigan, 395 Mich. 52, 60, 235 N.W.2d 1 (1975).

[6] There was also some discussion that this shift in power also necessarily established the Board of Education as the head of the Department of Education. For example, the following colloquy occurred between Delegates Faxon and Bentley:

Mr. Faxon:... The idea will be that the department over which the superintendent will be the executive officer will also be headed by the state board of education? Is that correct, Mr. President and Mr. Bentley?

Mr. Bentley: Mr. President, we have not entered into this discussion at this time. We are merely saying that we believe the word "office" should be substituted for the word "department," since "department" better specifies what it means than "office."

Mr.Faxon: Well, the only thing, Mr. President, that I just want to make sure is that the responsibility for the administration of that department, the ultimate responsibility will rest with the state board of education. If that is the intention with the substitution of the word "department," then I just want to be sure that I understand it, and I'll go along with this.

Mr. Bentley: Mr. President, we are making no change anywhere, except to make it a department instead of an office. [2 Official Record, Constitutional Convention 1961, pp. 2574-2575 (emphasis added).]

[7] Thus, the board, as head of the Department of Education, may have some "duties provided by law." These duties are not given to the board directly, but are given to the Department of Education. The board then executes the duties as the head of that department.