Taxpayers for Michigan Constitutional Govt v. State of Michigan

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
TAXPAYERS FOR MICHIGAN CONSTITUTIONAL GOVERNMENT v STATE OF
MICHIGAN
Docket Nos. 160658 and 160660. Argued March 4, 2021 (Calendar No. 4). Decided
July 28, 2021.
Taxpayers for Michigan Constitutional Government, Steve Duchane, Randall Blum, and
Sara Kandel brought an original action in the Court of Appeals against the state of Michigan; the
Department of Technology, Management, and Budget; and the Office of the Auditor General to
enforce § 30 of the Headlee Amendment, Const 1963, art 9, § 30, which prohibits the state from
reducing its budget for total state spending paid to all units of local government, taken as a group,
below that proportion in effect in fiscal year 1978–1979. Plaintiffs alleged in a four-count
complaint that the state’s accounting practices have resulted in violations of the Headlee
Amendment: Count I asserted that the state violated § 30 by classifying as state spending paid to
local government monies paid to school districts pursuant to Proposal A, Const 1963, art 9, § 11;
Count II made the same assertion as to monies paid to public school academies (PSAs) pursuant
to Proposal A and MCL 380.501(1); Count III alleged that the state improperly classified as § 30
state spending those funds paid to maintain trunk-line roads; and Count IV sought a determination
that state funds directed to local governments for new state mandates may not be counted toward
the proportion of state funds required by § 30. The Court of Appeals, BORRELLO, P.J., and FORT
HOOD and SHAPIRO, JJ., dismissed Count III without prejudice upon stipulation of the parties in
an unpublished order entered on December 4, 2017 (Docket No. 334663). Both plaintiffs and
defendants moved for summary disposition pursuant to MCR 2.116(C)(10). In a published
decision on reconsideration, the Court of Appeals, BORRELLO, P.J., and METER and SHAPIRO, JJ.,
granted defendants summary disposition on Count I, holding that Proposal A spending is properly
categorized as state funding to a unit of local government. 330 Mich App 295 (2019) (opinion by
SHAPIRO, J.). The panel majority also granted summary disposition to the state defendants on
Count II, over a partial dissent from Judge METER, holding that state aid to PSAs falls within the
scope of state spending to units of local government under § 30. The panel majority granted
plaintiffs’ motion for summary disposition on Count IV, over a partial dissent from Judge
BORRELLO, holding that state spending to fund state-mandated local services as required by § 29
should not be included in the state’s calculation of the proportion of total state spending under
§ 30. Finally, the panel granted plaintiffs mandamus relief and directed the state to comply with
reporting requirements found in MCL 21.235(3) and MCL 21.241. Both plaintiffs and defendants
sought leave to appeal in the Supreme Court, and the Supreme Court granted the applications. 505
Mich 1136 (2020).
In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN, CLEMENT (except as to Part VIII), and WELCH, the Supreme Court held:
Proposal A payments to school districts and § 29 state spending to fund new state-
mandated local services and activities are both properly counted in the calculation of total state
spending to all units of local government under Const 1963, art 9, § 30; a PSA is not a “school
district” within the meaning of Const 1963, art 9, § 33; PSAs themselves are not political
subdivisions of the state for purposes of the Headlee Amendment, but on remand the Court of
Appeals must consider whether PSA funding should be counted as spending paid to a unit of local
government if the authorizing body of the PSA is a school district, intermediate school district, or
community college; and the Court of Appeals’ grant of mandamus was vacated and remanded to
the Court of Appeals for clarification.
1. The Court of Appeals correctly held that Proposal A spending is properly categorized
as state spending paid to a unit of local government. Const 1963, art 9, § 30 provides that the
proportion of total state spending paid to all units of local government, taken as a group, shall not
be reduced below that proportion in effect in fiscal year 1978–1979. Const 1963, art 9, § 25
provides, in pertinent part, that the state is prohibited from shifting the tax burden to local
government and that implementation of § 25 is specified in §§ 26 through 34. Section 25 is a
preface meant to provide context to the amendment as a whole and is not an independent statement
of a substantive right. Because the constitutional language was clear, reliance on drafters’ notes
regarding § 25 was inappropriate. And because § 25 was not a provision that could be
independently enforced, the inquiry into whether Proposal A funding should be counted as part of
“total state spending paid to all units of Local Government, taken as a group” under § 30 was
straightforward. Section 33 provides that the term “local government” includes school districts.
Proposal A funding paid to school districts is state funding paid out of the State School Aid Fund.
Accordingly, Proposal A funding is money collected and disbursed by the state to a unit of local
government, and it was accurate to include Proposal A funds in determining the total state spending
paid to all units of local government. Therefore, the Court of Appeals’ grant of summary
disposition to defendants on Count I was affirmed.
2. The Court of Appeals improperly concluded that a PSA is a “school district” within the
meaning of Const 1963, art 9, § 33. Section 33 defines “local government” as any political
subdivision of the state, including, but not restricted to, school districts, cities, villages, townships,
charter townships, counties, charter counties, authorities created by the state, and authorities
created by other units of local government. A PSA is a state-supported public school operating
under a charter contract issued by a public authorizing body. Simply because a PSA is a “school
district” for purposes of Proposal A funding does not necessarily mean that a PSA is also a “school
district” as contemplated by the Headlee Amendment. Rather, the Headlee voters would not have
considered PSAs as equivalent with “school districts” as the term was understood at the time the
amendment was ratified. Like traditional school districts, PSAs deliver education to the students
of this state, but they do not resemble traditional school districts in many other ways: PSAs are
organized as nonprofit corporations by a person or other entity, while school districts are legislative
creations; PSAs are not limited to a defined local geographic area like school districts; instead of
a locally elected school board directly beholden to the voters of a school district, the governing
body of a PSA is made up of a board of directors comprised of privately selected members; unlike
a school district board, the board of directors of a PSA may enter into a contract with an education-
management corporation to manage or operate the PSA or to provide the PSA with instructional
or other services; and a PSA is funded solely by the state and may not levy taxes like a school
district. In fact, a PSA is often viewed as an alternative to the traditional educational services
offered by a school district, not an equivalent. Accordingly, a PSA is not a “school district” as
Headlee voters would have understood the term. Furthermore, while PSAs deliver traditional
governmental services, their distinctive marks are not those of a “political subdivision of the state”
as the voters who ratified the Headlee Amendment in 1978 would have understood the term. A
PSA authorized by the governing board of a state public university, MCL 380.501(2)(a)(iv), is
definitively not a political subdivision of the state. A PSA is not itself a political subdivision of
the state, nor is a state university. A PSA authorized by the governing board of a state public
university is not geographically limited, and it is responsive to the voters of the state of Michigan
at large, not to voters of any particular locale. Therefore, those PSAs are not included in the
definition of “Local Government” under § 33 of the Headlee Amendment, and any state funding
they receive should not be counted under § 30 as part of “total state spending paid to all units of
Local Government.” However, aside from state public universities, MCL 380.501(2)(a)(i) to (iii)
also empowers the boards of school districts, intermediate school districts, and community
colleges to authorize PSAs. If, for example, a traditional school district—a “local government”
under § 33 of the Headlee Amendment—experiments with the charter-school model to provide
educational services to local children, this might properly be counted as state spending to a unit of
local government under § 30. Accordingly, although a PSA is not itself a political subdivision of
the state, the case had to be remanded to the Court of Appeals to consider whether state funding to
PSAs authorized by a school district, an intermediate school district, or a community college
should be counted as state spending paid to a unit of local government for purposes of § 30 of the
Headlee Amendment.
3. The Court of Appeals improperly held that state funds provided to local governments
to satisfy state obligations under § 29 of the Headlee Amendment should not be counted in the
calculation of total state spending to units of local government under § 30. Section 29 requires the
state to provide funding if the state requires a unit of local government to engage in a new activity
or service, and § 29 prohibits the state from reducing the financed proportion of the necessary costs
of any existing activity or service as provided for in 1978. In this case, the Court of Appeals erred
by relying on the drafters’ notes to § 29 without considering the plain language of the amendment.
There are two types of state spending for purposes of § 30—state spending paid to units of local
government and all other state spending. Nothing in § 30 suggests that total state spending paid
to all units of local government should not include state spending to local governments to support
both new and existing § 29 state mandates. And § 29 is silent as to whether § 29 funds should be
included or excluded in the § 30 calculation of total state spending to units of local government.
State funding to a unit of local government is state funding to a unit of local government, whether
that funding is tied to a state mandate or is unrestricted aid for discretionary spending.
Accordingly, state funding provided to units of local government as required by § 29 should be
counted for purposes of total state spending paid to all units of local government under § 30, and
the judgment of the Court of Appeals was reversed on Count IV.
4. The Court of Appeals’ grant of mandamus was vacated. To obtain the extraordinary
remedy of mandamus, a plaintiff bears the burden of showing that the plaintiff has a clear legal
right to performance of the specific duty sought; that the defendant has a clear legal duty to
perform; that the act is ministerial; and that no other adequate legal or equitable remedy exists that
might achieve the same result. In this case, plaintiffs did not provide any argument or explanation
regarding mandamus except for a single mention in the prayer for relief of their complaint that
requested mandamus relief directing the state to comply with the reporting requirements of MCL
21.235 and MCL 21.241. When plaintiffs moved for summary disposition, they again included
no in-depth discussion of the mandamus issue. Accordingly, there was a question as to whether
the request for mandamus was even adequately pleaded. The Court of Appeals’ grant of
mandamus was puzzling. It was unclear in many respects; it vaguely ordered “the state through
its officers and departments” to comply with MCL 21.235 and MCL 21.241 when those statutes
apply to the governor (who was not a named defendant in this action) and to the Department of
Technology, Management, and Budget; and it was unclear whether the duties to be performed were
ministerial or involved the exercise of discretion. Moreover, the panel’s explanation that the writ
of mandamus was to be “prospective only” because plaintiffs “waived their claim to compensation
for the state’s past practice of counting funding for new or increased mandates for purposes of
§ 30” appeared to be unrelated to the actual mandamus relief granted—compliance with the annual
reporting requirements of MCL 21.235(3) and MCL 21.241. Accordingly, because the nature of
the relief requested or granted was unclear, Part III(D) of the Court of Appeals opinion had to be
vacated, and this issue was remanded to the Court of Appeals with the direction that it specify
which defendant is failing to perform which clear legal duty and that it analyze whether granting
the extraordinary writ of mandamus was warranted.
Part III(B) of the Court of Appeals opinion affirmed; Parts III(C) and (D) of the Court of
Appeals opinion reversed; Part III(E) of the Court of Appeals opinion vacated; and case remanded
to the Court of Appeals to consider whether PSA funding should be counted as spending paid to a
unit of local government if the authorizing body of the PSA is a school district, intermediate school
district, or community college and to clarify the Court of Appeals’ grant of mandamus relief.
Justice VIVIANO, joined by Justice ZAHRA, concurring in part and dissenting in part, agreed
with the majority’s decision in all respects except as to Part VI regarding funding for PSAs.
Because PSAs, as a category, qualify as political subdivisions of the state under Const 1963, art 9,
§ 33, Justice VIVIANO would have held that state spending for PSAs is properly considered
“spending paid to all units of Local Government” under Const 1963, art 9, § 30. The definition of
“Local Government” in Const 1963, art 9, § 33 contemplates a broad and inclusive definition of
that term. It means “any” political subdivision, and the phrase “including, but not restricted to”
contemplates that there are entities that qualify as local governments beyond those explicitly listed.
At the time that the Headlee Amendment was ratified, political subdivisions had pertinent
characteristics that included a geographically limited unit of government, formed to exercise
political power, and that is beholden to a local electorate. They also operated as a division of the
state to exercise some governmental function for the public benefit, had a capacity for self-
governance, and sometimes wielded the power of taxation. Those characteristics should be
considered in the context of the enumerated examples provided in § 33 because the Court cannot
define the general term “political subdivision” in a way that would exclude one or more of those
examples. PSAs have characteristics similar to both school districts and authorities that existed in
1978. Like school districts, PSAs provide educational services; these services are a governmental
function operated for the public benefit. Certain PSAs also operate in a limited geographic area in
a similar manner to certain authorities and school districts. PSAs also resemble other authorities
that do not have strict geographic boundaries but will be confined by necessity to a certain area of
operations. Next, while PSAs lack the power of taxation, this factor was not dispositive; authorities
often lacked this power, yet § 33 still lists them as examples of political subdivisions. School
districts also lack the power to raise operating funds through the imposition of property taxes after
the passage of Proposal A, Const 1963, art 9, § 11. Finally, PSAs have sufficient ability to self-
govern and have electorate control through the public authorizing bodies. Because the governing
bodies of authorities in existence in 1978 were almost universally chosen—not by the electorate
directly, but by the participating municipalities or state officers—a political subdivision does not
need to have either direct electoral control or total self-governance for purposes of the Headlee
Amendment. Rather, in light of the authorities in existence at the time of ratification, so long as
there is some public, electoral control of a political subdivision through an authorizing body,
municipality, or state officer, that is enough to weigh in favor of finding that an entity is a political
subdivision. Accordingly, Justice VIVIANO would have held that PSAs qualify as political
subdivisions under § 33 and that state spending for PSAs qualifies as part of the total state spending
paid to all units of local government under § 30.
Justice CLEMENT, concurring in part and dissenting in part, agreed with the Court’s
resolution of the substantive Headlee Amendment claims but dissented as to the Court’s
disposition of the state’s challenge to the Court of Appeals’ issuance of the writ of mandamus.
While she concurred with the Court’s decision to vacate the entire mandamus portion of the Court
of Appeals opinion, because this aspect of plaintiffs’ case was inadequately pleaded, Justice
CLEMENT would not have directed that Court to continue struggling on remand with an issue that
was not adequately framed. In this case, all four of plaintiffs’ counts in their complaint were
substantive Headlee Amendment claims; not one was a count seeking a writ of mandamus. The
only mention of mandamus in the complaint was a single line in the prayer for relief. The
complaint offered no allegations about what legal duties MCL 21.235 and MCL 21.241 impose on
any public officers, and no actual public officers were named as defendants. The Court of Appeals
similarly did not address which officers needed to perform which duties. The burden was on
plaintiffs to plead facts establishing the elements of the cause of action, and plaintiffs here did not
even list mandamus as one of the counts in their complaint. Therefore, Justice CLEMENT would
have simply held that plaintiffs’ complaint was inadequate and would have vacated Part III(E) of
the Court of Appeals opinion without directing the Court to work further on the mandamus issue
on remand.
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 28, 2021
STATE OF MICHIGAN
SUPREME COURT
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellants,
v No. 160658
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF
AUDITOR GENERAL,
Defendants-Appellees.
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellees,
v No. 160660
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF
AUDITOR GENERAL,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
I. INTRODUCTION
At issue in this case is a dispute over what monies should be included in calculating
“total state spending paid to all units of Local Government” under § 30 of the Headlee
Amendment, Const 1963, art 9, § 30. Plaintiffs argue that the state is shortchanging units
of local government by improperly inflating that figure. Specifically, plaintiffs allege that
“Proposal A” payments that the state directs to school districts pursuant to Const 1963, art
9, § 11 should not be counted and that neither should state spending for state-mandated
local services and activities under Const 1963, art 9, § 29. We disagree. Both are properly
counted as part of total state spending paid to units of local government for purposes of the
Headlee Amendment. Accordingly, we affirm Part III(B) and reverse Part III(D) of the
Court of Appeals opinion. Plaintiffs also argue that state aid to public school academies
(PSAs) 1 should not be counted as part of the total state spending paid to units of local
government under § 30. The Court of Appeals rejected this argument, concluding that
PSAs are “school districts,” a type of “Local Government” specified in § 33, and, therefore,
1
Commonly referred to as charter schools.
2
that their state funding is properly counted as part of “total state spending paid to all units
of Local Government.” We conclude, however, that the panel erred when it held that PSAs
are “school districts” as the term is used in the Headlee Amendment. We further hold that
PSAs are themselves not a “political subdivision of the state” as voters would have
understood the term when the Headlee Amendment was ratified. It is unclear, however,
whether the fact that a PSA’s authorizing body, such as a school district, intermediate
school district, or community college, might be an entity considered a “Local Government”
changes that general conclusion. Therefore, we reverse the conclusion reached in Part
III(C) of the Court of Appeals opinion that PSAs are “school districts” and remand to the
Court of Appeals for its reconsideration of this issue. Finally, we vacate the panel’s grant
of mandamus in Part III(E) and direct the Court of Appeals to provide further explanation
of its decision to grant this extraordinary remedy.
II. THE HEADLEE AMENDMENT
We begin with a brief overview of the constitutional framework at issue. In 1978,
Michigan voters approved an amendment of our state Constitution; that amendment is
popularly known as the Headlee Amendment. See Const 1963, art 9, § 6 and §§ 25 to 34. 2
The Headlee Amendment was born out of a nationwide “taxpayers revolt” and was meant
to limit legislative expansion of requirements placed on local government, put a freeze on
what had been perceived as excessive government spending, and lower taxes at both the
local and state levels. Bolt v Lansing, 459 Mich 152, 161; 587 NW2d 264 (1998). To
2
The amendment added §§ 25 through 34 to Article 9 of the Michigan Constitution and
amended § 6 of Article 9.
3
accomplish this, the Headlee Amendment sets forth “a fairly complex system of revenue
and tax limits.” Durant v Michigan, 456 Mich 175, 182; 566 NW2d 272 (1997).
Although the Headlee Amendment has been the focus of much litigation since its
inception, relatively little attention has been paid to § 30—the centerpiece of the instant
case. Section 30 provides in full:
The proportion of total state spending paid to all units of Local
Government, taken as a group, shall not be reduced below that proportion in
effect in fiscal year 1978-79. [Const 1963, art 9, § 30.]
The parties agree that to maintain 1978–1979 levels of state spending to units of local
government as required by § 30, at least 48.97% of state spending must be paid to “units
of Local Government.” 3 This Court has explained that the phrase “taken as a group” in
§ 30 requires only that the “overall percentage allotment of the state budget for local units
of government must remain at 1978 levels.” Durant v State Bd of Ed, 424 Mich 364, 393;
381 NW2d 662 (1985). This means that neither specific individual units of local
government (e.g., the city of Lansing) nor classes of units of local government (e.g., cities)
are entitled to the same proportion of the allotment for units of local government as they
received in 1978–1979.
3
As discussed further, the Headlee Amendment defines “Local Government” as “any
political subdivision of the state, including, but not restricted to, school districts, cities,
villages, townships, charter townships, counties, charter counties, authorities created by the
state, and authorities created by other units of local government.” Const 1963, art 9, § 33.
4
III. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiffs, Taxpayers for Michigan Constitutional Government and certain
individual taxpayers, filed this original action 4 in the Court of Appeals, seeking
declaratory, injunctive, and mandamus relief against the state of Michigan; the Department
of Technology, Management and Budget (DTMB); and the Office of the Auditor General
(collectively, “the state” or “the state defendants”). The basis of these claims is plaintiffs’
belief that the state is violating and evading the Headlee Amendment in the way that it
counts and classifies monies paid to units of local government. There are three specific
counts of plaintiffs’ complaint at issue in this appeal. First, in Count I, plaintiffs allege that
the state defendants violated §§ 25 and 30 by classifying monies paid to school districts
pursuant to Proposal A, Const 1963, art 9, § 11, as state spending paid to units of local
government. Second, in Count II, plaintiffs allege that the state defendants violated those
same provisions by classifying monies paid to PSAs as state spending to units of local
government. Third, in plaintiffs’ Count IV, 5 they allege that funds directed to units of local
government for state mandates pursuant to § 29 of the Headlee Amendment should not be
counted toward calculating state funding under § 30.
Following discovery and motion practice, both plaintiffs and defendants moved for
summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact).
In a published decision on reconsideration, the Court of Appeals granted the state
4
“Any taxpayer of the state shall have standing to bring suit in the Michigan State Court
of Appeals to enforce the provisions of Sections 25 through 31 . . . .” Const 1963, art 9,
§ 32.
5
A third count related to road funding is no longer at issue.
5
defendants summary disposition on Count I, holding that Proposal A spending is properly
categorized as state funding to a unit of local government. Taxpayers for Mich
Constitutional Gov’t v Michigan (On Reconsideration), 330 Mich App 295, 310; 948
NW2d 91 (2019) (opinion by SHAPIRO, J.); id. at 332 (METER, J., concurring in part and
dissenting in part); id. at 337 (BORRELLO, P.J., concurring in part and dissenting in part).
The panel majority also granted summary disposition to the state defendants on Count II,
over a partial dissent from Judge METER, holding that state aid to PSAs falls within the
scope of state spending to units of local government under § 30. Id. at 311 (opinion by
SHAPIRO, J.); id. at 337 (BORRELLO, P.J., concurring in part and dissenting in part). The
panel majority granted plaintiffs’ motion for summary disposition on Count IV, over a
partial dissent from Judge BORRELLO, holding that state spending to fund state-mandated
local services as required by § 29 should not be included in the state’s calculation of the
proportion of total state spending under § 30. Id. at 314 (opinion by SHAPIRO, J.); id. at
332 (METER, J., concurring in part and dissenting in part). Finally, the panel granted
plaintiffs mandamus relief and directed the state to comply with reporting requirements
found in MCL 21.235(3) and MCL 21.241. Id. at 319-320 (opinion by SHAPIRO, J.); id. at
332 (METER, J., concurring in part and dissenting in part); id. at 333 (BORRELLO, P.J.,
concurring in part and dissenting in part).
Both plaintiffs and defendants, left unsatisfied by various aspects of the Court of
Appeals’ decision, filed separate applications for leave to appeal in this Court. We granted
both parties’ applications for leave to appeal and directed them to address the issues
discussed herein. Taxpayers for Mich Constitutional Gov’t v Michigan, 505 Mich 1136(2020).
6
IV. STANDARD OF REVIEW
“The interpretation of a constitutional provision is a question of law, which we
review de novo.” Paquin v St Ignace, 504 Mich 124, 129; 934 NW2d 650 (2019). This
Court’s primary objective is to “realize the intent of the people by whom and for whom the
constitution was ratified.” Id. at 129-130 (quotation marks and citation omitted). Thus,
we employ the rule of common understanding: “The interpretation that should be given it
is that which reasonable minds, the great mass of the people themselves, would give it.”
Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971)
(quotation marks and citation omitted). In determining the common understanding of the
voters, the Court may also consider the circumstances surrounding the adoption of the
provision and the purpose sought to be accomplished by the provision. Id.A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934
NW2d 665 (2019). Summary disposition under this rule is appropriate when there is no
genuine issue of material fact. Id.V. COUNT I
In Count I, plaintiffs argue that by including Proposal A funding paid to school
districts when calculating total state spending paid to units of local government, the state
defendants violate § 30 of the Headlee Amendment. Like the Court of Appeals panel, we
disagree.
In 1993, the Legislature passed 1993 PA 145, “which effectively eliminated the
authority of school districts to levy millage on real property for local and intermediate
school district operating expenses . . . .” Durant v Michigan, 238 Mich App 185, 195-196;
7
605 NW2d 66 (1999). This resulted in billions of dollars in lost revenue for school districts.
Id. at 196. Thereafter, the Legislature passed 1993 PA 336, “which would fund school
districts through an increase in the personal income and single business tax rate, the
creation of a new real estate transfer tax, and the levying of a certain level of millage unless
the electorate adopted a proposed amendment of the Michigan Constitution . . . .” Id. In
1994 Michigan voters ratified constitutional amendments intended to make up for that lost
revenue, popularly known as “Proposal A.” Const 1963, art 9, §§ 3, 5, 8, and 11. Proposal
A “authorized an increase in the state sales and use tax for use in school aid, limited use of
local property taxes for school purposes, and authorized other changes in school finance.”
Durant, 456 Mich at 211 n 42. Pertinent here, the new and additional tax revenue collected
pursuant to Proposal A was largely dedicated to the State School Aid Fund; those funds
are used for aid to school districts, higher education, and school employees’ retirement
systems. Const 1963, art 9, § 11. Under Proposal A, therefore, the responsibility for school
funding was no longer a purely local endeavor supported by local property taxes but instead
was managed at the state level through increased statewide taxation. After Proposal A
passed, state defendant DTMB began including spending from Proposal A revenue in its
calculation of total state spending paid to units of local government under § 30 of the
Headlee Amendment.
Plaintiffs argue that by including Proposal A funds paid to school districts out of the
State School Aid Fund in the calculation of total state spending paid to units of local
government under § 30, the state is violating § 25 of the Headlee Amendment. Section 25
provides:
8
Property taxes and other local taxes and state taxation and spending
may not be increased above the limitations specified herein without direct
voter approval. The state is prohibited from requiring any new or expanded
activities by local governments without full state financing, from reducing
the proportion of state spending in the form of aid to local governments, or
from shifting the tax burden to local government. A provision for emergency
conditions is established and the repayment of voter approved bonded
indebtedness is guaranteed. Implementation of this section is specified in
Sections 26 through 34, inclusive, of this Article. [Const 1963, art 9, § 25
(emphasis added).]
Plaintiffs argue that by using Proposal A revenue in the calculation of total state spending
paid to units of local government, the state has impermissibly shifted the tax burden to
local governments. This is because post-Proposal A, a larger share of the 48.97% of state
spending goes to schools instead of other units of local government, and this forces local
governments to raise taxes in order to provide services that the state had previously funded.
The first flaw in plaintiffs’ argument, as the Court of Appeals majority recognized,
is that § 25 of the Headlee Amendment is a preface meant to provide context to the
amendment as a whole, not an independent statement of a substantive right. Taxpayers,
330 Mich App at 300 n 1. In fact, this Court has stated that it is “quite clear that § 25 is
merely an introduction” to the following sections of the Headlee Amendment, “not an
independent statement of rights or duties.” Durant, 424 Mich at 376 n 4. 6 The plain
6
The Court of Appeals has reached a similar conclusion several times. See Commuter Tax
Ass’n of Metro Detroit v Detroit, 109 Mich App 667, 670; 311 NW2d 449 (1981)
(“Headlee, [§] 25, states a general purpose, but, by its own terms, is implemented by the
sections which follow . . . .”); Waterford Sch Dist v State Bd of Ed, 130 Mich App 614,
620; 344 NW2d 19 (1983) (describing § 25 as “an introductory paragraph to the
amendment which, by its very language, indicates that its substantive implementation is
specified in the sections of the statute which follow”); Jackson Co v Jackson, 302 Mich
App 90, 93 n 1; 836 NW2d 903 (2013) (rejecting the independent enforcement of § 25).
9
language of § 25 supports this conclusion because it denotes that its “[i]mplementation” is
specified in §§ 26 through 34 of Article 9. Const 1963, art 9, § 25; Durant, 456 Mich at
182 (explaining that the system of revenue and tax limits created by the Headlee
Amendment are “summarized” in § 25 and then “implemented in the following sections”). 7
Plaintiffs point to the Drafters’ Notes of the Headlee Amendment, which state that
§ 25 “specifically prohibits the state from circumventing the intent of the amendment by
shifting tax burdens from the state to local governmental levels.” 8 While the Drafters’
Notes are “one tool available to the courts,” they are not authoritative because the notes
were not published until after the amendment was passed and “the drafters’ intent might
have been different than the meaning given by the great mass of people . . . .” Durant, 456
Mich at 195-196. Accordingly, the Drafters’ Notes are generally “given little weight when
the intent of those who ratified or voted for adoption is manifested otherwise.” Durant,
424 Mich at 382 n 12. Reliance on the Drafters’ Notes where, as here, the constitutional
language is clear is inappropriate. American Axle & Mfg v Hamtramck, 461 Mich 352,
7
Even were we to assume for the sake of argument that § 25 is a substantive provision,
there are reasons to believe that any shifting that took place is not the type that the Headlee
Amendment would prohibit. Section 25 states, “The state is prohibited . . . from shifting
the tax burden to local government.” Const 1963, art 9, § 25 (emphasis added). If a shift
occurred here, it was at the behest of the voters through the passage of Proposal A.
Moreover, the responsibility for school funding shifted from local government to the state,
not from the state to local government as prohibited by § 25.
8
Taxpayers United Research Institute, Drafters’ Notes—Tax Limitation Amendment
(Proposal E, approved by the electors on November 7, 1978, as an Amendment to the
Michigan Constitution of 1963), § 25, p 3.
10
362; 604 NW2d 330 (2000). To the extent that the Drafters’ Notes are relevant, however,
they explicitly provide:
The Preamble to the Amendment, Section 25, serves as a summary of
Sections 26 through 34, inclusive and Section 6, as amended; and spells
out . . . the objectives, purposes, and intent of the drafters, petitioners and the
voters . . . . [Taxpayers United Research Institute, Drafters’ Notes—Tax
Limitation Amendment (Proposal E, approved by the electors on
November 7, 1978, as an Amendment to the Michigan Constitution of 1963),
§ 25, pp 2-3 (emphasis added).]
In other words, the Drafters’ Notes confirm that the drafters themselves did not view § 25
as an independent source of substantive restrictions but as a “[p]reamble” or “summary”
of the rest of the Headlee Amendment. 9
Because § 25 is not a provision that can be independently enforced, our inquiry into
whether Proposal A funding should be counted as part of “total state spending paid to all
units of Local Government, taken as a group” under § 30 is straightforward. The Headlee
Amendment explicitly provides that “Local Government” includes “school districts.”
Const 1963, art 9, § 33. Proposal A funding paid to school districts is state funding paid
out of the State School Aid Fund. 10 Very simply, Proposal A funding is money collected
and disbursed by the state to a unit of local government. When determining “total state
9
Taking § 25 line by line evidences its summary nature. The first sentence, “Property
taxes and other local taxes and state taxation and spending may not be increased above the
limitations specified herein without direct voter approval,” speaks to §§ 26 and 31. The
second sentence, “The state is prohibited from requiring any new or expanded activities by
local governments without full state financing, from reducing the proportion of state
spending in the form of aid to local governments, or from shifting the tax burden to local
government,” refers to § 29, § 30, and then back to § 29, respectively. The third sentence,
“A provision for emergency conditions is established and the repayment of voter approved
bonded indebtedness is guaranteed,” concerns § 27.
10
See State School Aid Act, MCL 388.1601 et seq.
11
spending to all units of Local Government, taken as a group,” it is, therefore, accurate to
include Proposal A funds in that calculation. Plaintiffs’ argument would require this Court
to improperly read a nonexistent exception into the § 30 calculation by excluding one type
of state spending to a local government.
While plaintiffs believe that the relationship between Proposal A and the Headlee
Amendment undermines the purpose of the Headlee Amendment, these provisions are
coequal constitutional amendments. Even were we to conclude that Proposal A frustrates
the spirit of the Headlee Amendment by creating a new source of tax revenue for the state
to collect and disburse and then counting that in the § 30 calculation of total state spending,
the decision to adopt Proposal A was a choice the voters made. 11 “[T]he voters themselves
determine any constitutional requirements and are fully in control of what will be mandated
by the constitution through the ratification process.” Durant, 424 Mich 379 n 6.
While state funding to units of local government has changed post-Proposal A, the
Headlee Amendment never guaranteed a particular level of funding to any particular unit
of local government. Durant, 424 Mich at 393. With the inclusion of Proposal A funding
in the § 30 calculation, it simply cannot be said that units of local government “taken as a
11
We reject plaintiffs’ speculation that the voters were totally unaware of the potential
impacts that Proposal A could have on the function of the Headlee Amendment. In fact,
plaintiffs’ own evidence on this point—a May 14, 1993 Detroit News article entitled
“Headlee Criticizes Proposal A as ‘Tax Shift and Tax Increase’ ”—reveals that there was
public discourse on this very topic before the adoption of Proposal A. The article,
published almost a year before Proposal A was ratified, details how Richard Headlee,
author of the Headlee Amendment, criticized Proposal A as a “major tax shift” and argued
that it would “gut[] Section 30 and protection of local government revenue sharing”—the
very same arguments that plaintiffs raise today. Cain, Headlee Criticizes Proposal A as
‘Tax Shift and Tax Increase’, Detroit News (May 14, 1993), p 2B.
12
group” have collectively suffered. 12 In sum, § 25 of the Headlee Amendment is not an
independent source of a substantive right on which plaintiffs can rely, and their arguments
find no support in the plain language of § 30. On Count I, therefore, we affirm the Court
of Appeals’ grant of summary disposition to the state defendants.
VI. COUNT II
Plaintiffs’ Count II is also concerned with school funding, but of a different type—
funding for PSAs. Plaintiffs argue that money paid to PSAs out of the state’s School Aid
Fund should not be used to calculate total state spending to units of local government under
§ 30 of the Headlee Amendment. The Headlee Amendment specifically defines “Local
Government” as “any political subdivision of the state, including, but not restricted to,
school districts, cities, villages, townships, charter townships, counties, charter counties,
authorities created by the state, and authorities created by other units of local government.”
Const 1963, art 9, § 33. The Court of Appeals concluded that a PSA is a “school district”
within the meaning of § 33, making it a unit of “Local Government.” We disagree.
In 1993, the Legislature authorized the creation of PSAs. A PSA is a state-supported
public school operating under a charter contract issued by a public authorizing body. 13
MCL 380.501(1) of the Revised School Code, MCL 380.1 et seq., provides that a PSA is
12
In fact, post-Proposal A, although units of local government other than schools may
receive a lesser percentage of the 48.97% portion of the state budget, it seems that each
percentage point likely represents more money because the state now takes in additional
revenue from Proposal A associated sales tax.
13
See Michigan Department of Education, Michigan Charter Schools—Questions
and Answers (November 2017 rev), p 1, available at
(accessed June 17, 2021)
[https://perma.cc/FPS6-ZWG3].
13
“a school district for the purposes of section 11 of article IX of the state constitution of
1963 . . . .” That constitutional provision, Const 1963, art 9, § 11, adopted as part of
Proposal A, provides for the creation of the State School Aid Fund. The State School Aid
Act’s definition of “district” also includes both local school districts and PSAs. MCL
388.1603(7).
On the basis of these authorities, the Court of Appeals majority concluded that PSAs
receive state funding earmarked for school districts and are, therefore, school districts for
the purpose of receiving state school aid. Taxpayers, 330 Mich App at 312 (opinion by
SHAPIRO, J.); id. at 337 (BORRELLO, P.J., concurring in part and dissenting in part). We
find no error in this conclusion, but whether the Legislature has decided to treat PSAs as
“school districts” for purposes of receiving state funding is beside the point. The
Legislature’s subsequent enactment of a statute cannot supersede the common
understanding of a term adopted by the voters who ratified the constitutional amendment.
See Pillon v Attorney General, 345 Mich 536, 547; 77 NW2d 257 (1956) (“Neither the
legislature, nor this Court, has any right to amend or change a provision in the
Constitution.”). Moreover, the plain language of MCL 380.501(1) signifies that the
Legislature intended that PSAs be considered a “school district” for a specific purpose by
mentioning that PSAs are “school districts” under Const 1963, art 9, § 11 (establishing the
State School Aid Fund). 14 Simply because a PSA is a “school district” for purposes of
Proposal A funding does not necessarily mean that a PSA is also a “school district” as
14
MCL 380.501(1) also indicates that a PSA is a “public school” for purposes of Const
1963, art 8, § 2. See Council of Organizations & Others for Ed About Parochiaid, Inc v
Governor, 455 Mich 557; 566 NW2d 208 (1997).
14
contemplated by the Headlee Amendment. In other words, that the Legislature authorized
the creation of PSAs and treats them as school districts for the specific purpose of receiving
aid from the State School Aid Fund tells us nothing about whether the voters would have
understood a PSA to be a “local government” for purposes of the Headlee Amendment.
In addition, we conclude that the Headlee voters would not consider PSAs as
equivalent with “school districts” as the term was understood at the time the amendment
was ratified. Like traditional school districts, PSAs deliver education to the students of
this state, but they do not resemble traditional school districts in many other ways. For
example, PSAs are organized as nonprofit corporations by a person or other entity, 15 while
school districts are legislative creations. PSAs are not limited to a defined local geographic
area like school districts. 16 Instead of a locally elected school board directly beholden to
the voters of a school district, the governing body of a PSA is made up of a board of
directors comprised of privately selected members. MCL 380.503(11). Unlike a school
district board, the board of directors of a PSA may enter into a contract with an education-
management corporation to manage or operate the PSA or to provide the PSA with
instructional or other services. See MCL 380.503c; MCL 380.503(6)(k) and (n). 17 A PSA
15
See Nonprofit Corporation Act, MCL 450.2101 et seq.
16
State public universities, for example, are the authorizing bodies for about 70% of PSAs
in this state. See State of Michigan, Public School Academies by Authorizer

(accessed June 22, 2021) [https://perma.cc/PU5Q-4E3Y]. A PSA must “be open to all
pupils who reside within the geographic boundaries of that authorizing body,” MCL
380.504(3), which for a state-public-university authorizer is the entire state of Michigan.
17
See OAG, 1995-1996, No. 6,915 (September 4, 1996).
15
is funded solely by the state and may not levy taxes like a school district. 18 A PSA, in fact,
is often viewed as an alternative to the traditional educational services offered by a school
district, not an equivalent. 19 Accordingly, we conclude that a PSA is not a “school district”
as Headlee voters would have understood the term. 20
As Judge METER recognized, because a PSA is not a “school district,” a specific
type of political subdivision of the state, our analysis must shift to whether a PSA can itself
be categorized more generally as a “political subdivision of the state.” If so, then it is a
“local government” under Const 1963, art 9, § 33, and any state spending that it receives
18
We acknowledge the dissent’s argument that, following the passage of Proposal A, there
are now limitations on the ability of school districts to raise operating funds through
property taxes. However, the voters approved Proposal A in 1994—16 years after the
voters ratified the Headlee Amendment—and we focus our inquiry on the voters’
contemporaneous understanding of the term “school districts.” Walker v Wolverine
Fabricating & Mfg Co, Inc, 425 Mich 586, 596; 391 NW2d 296 (1986) (“The paramount
rule of constitutional construction is that the constitution should be given that interpretation
which the great mass of people would have understood when they ratified it.”). Moreover,
unlike PSAs, school districts still retain significant powers of taxation. See, e.g., MCL
380.1212(1) (providing a taxing power to support a building-and-site sinking fund); MCL
380.1351(4) (providing a taxing power to service capital project debts); MCL 123.52
(providing a taxing power for recreational facilities and playgrounds).
19
See Furst, The Short But Very Curious Legal History of Michigan’s Charter Schools,
105 West’s Ed L Rep 1, 2 (1996) (“These academies were to operate as public schools and
thereby be competitive with existing school districts to provide a new initiative for
schooling in Michigan, an initiative that would result in better education for the children
of the state.”).
20
We note that two of our attorneys general have concluded that a PSA is not a “school
district” as a general proposition. See OAG, 1995-1996, No. 6,915 (September 4, 1996);
OAG, 2003-2004, No. 7,154 (March 31, 2004). And we are not aware of any cases in
which our state courts have concluded that PSAs are, as a general proposition, school
districts.
16
should be counted under § 30 when calculating total state spending to units of local
government. Because PSAs did not exist when the Headlee Amendment was ratified in
1978, we agree with Judge METER’s instinct to consider construction of the term from both
before and shortly after the Headlee Amendment’s ratification to ascertain whether
Headlee voters would have considered a PSA to be a “political subdivision of the state.” 21
We first look to an opinion from our Attorney General from 15 years before the
voters passed the Headlee Amendment. OAG, 1963-1964, No. 4,037 (January 2, 1963).
There, the Attorney General considered whether a county drainage district constituted a
political subdivision of the state. As a general matter, said the Attorney General, “political
divisions of the state are those which are formed for the more effectual or convenient
exercise of political power within . . . particular localities” and have certain “distinctive
marks.” Id. at 3 (quotation marks and citation omitted). These distinctive marks include
that a political subdivision of a state will
embrace a certain territory and its inhabitants, organized for the public
advantage, and not in the interest of particular individuals or classes; that
their chief design is the exercise of governmental functions, and that to the
electors residing within each is, to some extent, committed the power of local
government, to be wielded either mediately or immediately, within their
territory, for the peculiar benefit of the people there residing. [Id. (quotation
marks and citation omitted).]
21
See McPherson v Blacker, 92 Mich 377, 383; 52 NW 469 (1892) (“ ‘[W]here a particular
construction has been generally accepted as correct, and especially when this has occurred
contemporaneously with the adoption of the constitution, and by those who had opportunity
to understand the intention of the instrument, it is not to be denied that strong presumption
exists that the construction rightly interprets the intention.’ ”), quoting 1 Cooley,
Constitutional Limitations (1868), p 67.
17
A few years after the Headlee Amendment was ratified, our Court of Appeals similarly
wrote that attributes “generally regarded as distinguishing a political subdivision are its
existence for the purpose of discharging some function of local government, its prescribed
area and its authority for self-government through officers selected by it.” People v
Egleston, 114 Mich App 436, 440; 319 NW2d 563 (1982). Taken together, we conclude
that the Headlee voters would have understood a “political subdivision of the state” to mean
a geographically limited unit of government formed to exercise political power and that is
beholden to a local electorate. 22
Because PSAs provide educational services, they perform “essential public
purposes and governmental functions of this state.” MCL 380.501(1). But other
characteristics of PSAs lead us to agree with Judge METER that PSAs do not fall under the
category of a “political subdivision of the state” for largely the same reasons we concluded
that a PSA is not a “school district” as the term is used in the Headlee Amendment. 23 PSAs
are nonprofit corporations, which are private entities and not governmental bodies. PSAs
do not have limited or local geographic boundaries. The governing body of a PSA is not
elected by voters. The governing board of a PSA answers to its authorizing body, not to
local voters. Council of Organizations & Others for Ed About Parochiaid, Inc v Governor,
22
As the dissent points out, political subdivisions might also have other characteristics such
as the capacity for self-governance or the power of taxation.
23
The dissent concludes that the performance of essential public purposes and
governmental functions of this state “weighs heavily in favor of a finding that PSAs are
political subdivisions.” We disagree. Numerous state agencies and even quasi-
governmental entities perform essential public purposes and governmental functions of this
state yet would not be considered “political subdivisions of the state” as the term is used in
relation to the definition of “Local Government” in § 33.
18
455 Mich 557, 575; 566 NW2d 208 (1997). While “the public maintains control of the
schools through the authorizing bodies,” id. at 576, this control is much less direct, or even
merely symbolic. Similarly, because a PSA is under the immediate control of its
authorizing body, its ability to self-govern is hindered and it has no independent political
power. In sum, while PSAs deliver traditional governmental services, their “distinctive
marks” are not those of a “political subdivision of the state” as the voters who ratified the
Headlee Amendment in 1978 would have understood the term.
The dissent discusses “authorities created by the state” and “authorities created by
other units of local government,” which are two specifically enumerated types of “political
subdivisions of the state” listed in § 33. It points out that “authorities,” such as water
authorities; 24 garbage, rubbish, and dog-pound authorities; 25 and metropolitan district
authorities, 26 were in existence at the time the Headlee Amendment was ratified, 27 yet they
have less well-defined geographic boundaries, they lack the power of taxation, and their
governing bodies are not generally directly elected by the voters. Because authorities fall
within the purview of § 33 and have these characteristics, the dissent reasons that PSAs
24
MCL 121.29 et seq.
25
MCL 123.301 et seq.
26
MCL 119.1 et seq.
27
The dissent also discusses the Mackinac Bridge Authority, created to construct and
maintain the Mackinac Bridge. We are skeptical of the dissent’s conclusion that the
Mackinac Bridge Authority qualifies as an authority created by the state that is also a
political subdivision of the state for purposes of § 33 of the Headlee Amendment. Unlike
the other authorities discussed, the Mackinac Bridge Authority is an instrumentality of the
state, MCL 254.302(1), and does not exercise political power on behalf of a local
population or have a mechanism for local electorate control.
19
must also fall within the purview of the definition of “political subdivision of the state” in
§ 33.
We cannot say for certain that the authorities mentioned by the dissent would each
qualify as political subdivisions of the state as contemplated by § 33; that is not the question
we are faced with today. However, assuming that the authorities listed in the dissent are
political subdivisions of the state, it does not follow that PSAs must also be political
subdivisions of the state. We detect differences between the two entities. First, we disagree
that the authorities discussed by the dissent do not have well-defined geographic
boundaries given that they are generally made up of the territories comprising the local
governmental units that agree to participate in the authority. 28 That certain authorities
might have the ability to contract outside that territory29 or operate within 10 miles of the
territory30 does not expand the authority’s own inherent territorial limits. Second, as the
dissent recognizes, the fact that a PSA cannot levy taxes is not dispositive of whether it is
a political subdivision of the state. Some political subdivisions of the state, such as cities
or counties, may levy taxes, whereas others, such as the authorities examined by the
dissent, generally cannot. Third, we agree with the dissent that authorities and PSAs are
28
For example, garbage, rubbish, and dog-pound authorities “shall be comprised of the
territory within such incorporating municipalities.” MCL 123.301. Similarly,
metropolitan districts are comprised of the “territory within [the] respective limits” of two
or more cities, villages, or townships. MCL 119.1.
29
See MCL 123.305(1) and (2) (authorizing garbage, rubbish, or dog-pound authorities to
enter into contracts with other units of local government).
30
See MCL 124.406(b) (allowing a metropolitan transportation authority to operate within
a 10-mile radius of the authority’s territory).
20
generally similarly removed from direct electorate control. The level of direct electorate
accountability, however, is not the same for every PSA.
Overall, again assuming that the authorities identified in the dissent are all political
subdivisions of the state, we do not find PSAs sufficiently analogous to them to conclude
that, if those authorities are political subdivisions of the state, PSAs must also be political
subdivisions of the state. We conclude that a PSA authorized by the governing board of a
state public university, MCL 380.501(2)(a)(iv), is definitively not a political subdivision of
the state. A PSA is not itself a political subdivision of the state, nor is a state university.
A PSA authorized by the governing board of a state public university is not geographically
limited, and it is responsive to the voters of the state of Michigan at large, 31 not to voters
of any particular locale. Therefore, those PSAs are not included in the definition of “Local
Government” under § 33 of the Headlee Amendment, and any state funding they receive
should not be counted under § 30 as part of “total state spending paid to all units of Local
Government.” However, aside from state public universities, MCL 380.501(2)(a)(i) to (iii)
also empowers the boards of school districts, intermediate school districts, and community
colleges to authorize PSAs. 32 If, for example, a traditional school district—a “local
government” under § 33 of the Headlee Amendment—experiments with the charter-school
model to provide educational services to local children, this might properly be counted as
state spending to a unit of local government under § 30.
31
This can be either through appointment to a university’s governing board by the governor
or through statewide elections. Const 1963, art 8, §§ 5 and 6.
32
The authorizing body of a PSA “is the fiscal agent” of the PSA that receives payment
from the state and “shall then forward the payment” to the PSA. MCL 380.507(3).
21
We express no opinion on this issue because we believe it to be worthy of further
briefing and full consideration by our Court of Appeals. Accordingly, although we hold
that a PSA is not a political subdivision of the state, we remand this case to the Court of
Appeals to consider whether state funding to PSAs authorized by a school district, an
intermediate school district, or a community college should be counted as state spending
to a unit of local government for purposes of § 30 of the Headlee Amendment.
VII. COUNT IV
The next argument plaintiffs advance is that state funds provided to local
governments to satisfy state obligations under § 29 of the Headlee Amendment should not
be counted in the calculation of total state spending to units of local government under
§ 30. 33 The Court of Appeals majority agreed. Taxpayers, 330 Mich App at 314 (opinion
by SHAPIRO, J.); id. at 332 (METER, J., concurring in part and dissenting in part). However,
we concur with the dissenting judge because the majority’s analysis ignores the plain
language of the amendment. Therefore, we reverse.
Section 29 of the Headlee Amendment provides:
The state is hereby prohibited from reducing the state financed
proportion of the necessary costs of any existing activity or service required
of units of Local Government by state law. A new activity or service or an
increase in the level of any activity or service beyond that required by
existing law shall not be required by the legislature or any state agency of
units of Local Government, unless a state appropriation is made and
disbursed to pay the unit of Local Government for any necessary increased
33
We note that the parties present this argument largely in the abstract and have not
provided the Court with examples of state-mandated and state-funded programs that are
accounted for in the 48.97% portion of the state budget for local government spending but
that plaintiffs believe should count toward the 51.03% portion of the state’s budget.
22
costs. The provision of this section shall not apply to costs incurred pursuant
to Article VI, Section 18. [Const 1963, art 9, § 29.]
Through § 29, the Headlee Amendment sought to maintain state funding for state-
mandated programs in effect when the amendment was passed and to ensure that if the
state mandated any new activities or services, those activities or services would come with
concomitant state funding. Judicial Attorneys Ass’n v Michigan, 460 Mich 590, 595; 597
NW2d 113 (1999). Section 29 “reflect[s] an effort on the part of the voters to forestall any
attempt by the Legislature to shift responsibility for services to the local government, once
its revenues were limited by the Headlee Amendment, in order to save the money it would
have had to use to provide the services itself.” Durant, 424 Mich at 379.
According to plaintiffs, when the Legislature requires “[a] new activity or service
or an increase in the level of any activity or service” and “a state appropriation is made and
disbursed to pay the unit of Local Government for any necessary increased costs,” Const
1963, art 9, § 29, that money should not be included in calculating the 48.97% of “total
state spending paid to all units of Local Government” under § 30. If it is counted, argue
plaintiffs, the state may impose funded mandates that reduce the state’s “required”
payments to local governments. Plaintiffs suggest that, in theory, the state could earmark
every dollar of the required 48.97% funding for state-mandated local activities or services
and leave $0 for local government discretionary spending.
The Court of Appeals majority agreed, concluding that “when §§ 29 and 30 are read
together, they require the state to fully fund the necessary implementation costs of any new
mandate imposed on a unit of local government and to provide this funding in addition to
the funding paid in satisfaction of the state’s § 30 revenue-sharing obligation.” Taxpayers,
23
330 Mich App at 314 (opinion by SHAPIRO, J.); id. at 332 (METER, J., concurring in part
and dissenting in part). In support, the panel majority looked to the Drafters’ Notes
associated with § 30. The Drafters’ Notes state that the “primary intent” of § 30 was to
“prevent a shift in tax burden, either directly or indirectly from state to local responsibility”
and that “[a]dditional or expanded activities mandated by the state, as described in Section
29 would tend to increase the proportion of total state spending paid to local government
above that level in effect when this section becomes effective.” Drafters’ Notes, § 30,
pp 10-11. This note, said the majority, supports plaintiffs’ position by “evinc[ing] an intent
that state-funding obligations arising from new § 29 obligations are to be paid in addition
to § 30 revenue sharing.” Taxpayers, 330 Mich App at 316 (opinion by SHAPIRO, J.); id.
at 332 (METER, J., concurring in part and dissenting in part).
The majority erred, however, by relying on the Drafters’ Notes without considering
the plain language of the amendment. American Axle & Mfg, Inc v Hamtramck, 461 Mich
352, 362; 604 NW2d 330 (2000) (“[R]eliance on extrinsic evidence [is] inappropriate
because the constitutional language is clear.”). 34 The calculation of total state spending
paid to units of local government under § 30, as discussed in regard to Count I, is
34
The majority also relied on the Drafters’ Notes for § 30 without mentioning the Drafters’
Notes for § 29. Although we give little weight to these notes, Durant, 424 Mich at 382
n 12, we take notice that the § 29 note explicitly states:
This section does not necessarily prevent the state from shifting funds
from general and unrestricted revenue sharing to the funding of a state
mandated activity but it does prohibit shifting funds from state mandated
programs unless the mandate for such programs is eliminated. [Drafters’
Notes, § 29, p 10 (emphasis added).]
This note supports that funding for discretionary spending is not required.
24
straightforward. There are two types of state spending for purposes of § 30—state
spending paid to units of local government and all other state spending. The former must
make up at least 48.97% of the state budget, and the latter may make up no more than
51.03% of the state budget. Plaintiffs do not argue that the § 29 mandated spending is not
“state spending,” nor do they argue that it is not spending that is paid to a “unit[] of Local
Government.” Const 1963, art 9, § 30. Nothing in § 30 suggests that “total state spending
paid to all units of Local Government” should not include state spending to local
governments to support both new and existing § 29 state mandates. Plaintiffs’ argument
similarly finds no support in the text of § 29. Section 29 requires the state to provide
funding if the state requires a unit of local government to engage in a new activity or
service, and § 29 prohibits the state from reducing the financed proportion of the necessary
costs of any existing activity or service as provided for in 1978. It is silent as to whether
§ 29 funds should be included or excluded in the § 30 calculation of total state spending to
units of local government.
We do not read language into these provisions that is simply not there. The Court
of Appeals majority reasoned that if state spending to fund new state mandates under § 29
could be counted for § 30, it would “supplant state spending intended for local use” and
force the same money to perform “double duty.” Taxpayers, 330 Mich App at 316-317
(opinion by SHAPIRO, J.); id. at 332 (METER, J., concurring in part and dissenting in part).
But this conclusion effectively creates a new category of spending—“state spending
intended for local discretionary use,” which is not a type of state spending recognized by
the Headlee Amendment—and then treats that category as uncountable under § 30. This
is a strained construction not grounded in the language of the amendment. Instead, we
25
agree with Judge BORRELLO that, with no stated prohibition to the contrary in the plain
language of the amendment, “the state is free to shift or reallocate . . . general and
unrestricted revenue sharing paid under § 30 to fund the necessary costs incurred by units
of local government in providing newly enacted state-mandated activity or service or an
increase in an existing mandated activity or service without violating the scheme of the
Headlee Amendment.” Taxpayers, 330 Mich App at 336 (BORRELLO, P.J., concurring in
part and dissenting in part).
Therefore, we agree with Judge BORRELLO that state funding provided to units of
local government as required by § 29 should be counted for purposes of “total state
spending paid to all units of Local Government” under § 30 and that this conclusion “best
honors the voters’ intent neither to freeze legislative discretion to enact necessary and
desirable legislation in response to changing times and conditions nor to permit state
government unrestricted discretion in its allocation of support for mandated activities and
services.” Taxpayers, 330 Mich App at 336-337 (BORRELLO, P.J., concurring in part and
dissenting in part). State funding to a unit of local government is state funding to a unit of
local government, whether that funding is tied to a state mandate or is unrestricted aid for
discretionary spending. Accordingly, we reverse the judgment of the Court of Appeals on
Count IV.
VIII. MANDAMUS
Finally, plaintiffs sought and were granted a writ of mandamus in the Court of
Appeals. We vacate the grant of mandamus and remand to the Court of Appeals to clarify
its reasoning or reconsider its decision as it deems appropriate.
26
“The primary purpose of the writ of mandamus is to enforce duties created by law
where the law has established no specific remedy and where, in justice and good
government, there should be one.” State Bd of Ed v Houghton Lake Community Sch, 430
Mich 658, 666; 425 NW2d 80 (1988) (citations omitted). To obtain this extraordinary
remedy, the plaintiff bears the burden of showing that “(1) the plaintiff has a clear, legal
right to performance of the specific duty sought, (2) the defendant has a clear legal duty to
perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy
exists that might achieve the same result.” Rental Props Owners Ass’n of Kent Co v Kent
Co Treasurer, 308 Mich App 498, 518; 866 NW2d 817 (2014). “A ministerial act is one
in which the law prescribes and defines the duty to be performed with such precision and
certainty as to leave nothing to the exercise of discretion or judgment.” Hillsdale Co Senior
Servs, Inc v Hillsdale Co, 494 Mich 46, 58 n 11; 832 NW2d 728 (2013) (quotation marks
and citation omitted).
In the prayer for relief of their complaint filed in the Court of Appeals, plaintiffs
requested “[m]andamus relief directing the State of Michigan to fully comply with the
reporting requirements of MCL 21.235 and 21.241[.]” They did not provide any argument
or explanation about this requested relief or otherwise elaborate in their brief in support of
the complaint.
These statutes, which implement the Headlee Amendment, impose certain reporting
requirements on the governor, MCL 21.235(3), and defendant DTMB, MCL 21.241. MCL
21.235(3) requires that the governor include with the annual budget recommendation an
accompanying report of the amount of state disbursements required to be paid to each local
unit of government for the necessary cost of each state requirement and the total amount
27
of all disbursements to be paid to local government. MCL 21.241 requires DTMB to
collect and tabulate various information, including:
(a) The state financed proportion of the necessary cost of an existing
activity or service required of local units of government by existing law.
(b) The nature and scope of each state requirement which shall require
a disbursement under [MCL 21.235].
(c) The nature and scope of each action imposing a potential cost on
a local unit of government which is not a state requirement and does not
require a disbursement under this act.
(2) The information shall include:
(a) The identity or type of local unit and local unit agency or official
to whom the state requirement or required existing activity or service is
directed.
(b) The determination of whether or not an identifiable local direct
cost is necessitated by state requirement or the required existing activity or
service.
(c) The amount of state financial participation, meeting the
identifiable local direct cost.
(d) The state agency charged with supervising the state requirement
or the required existing activity or service.
(e) A brief description of the purpose of the state requirement or the
required existing activity or service, and a citation of its origin in statute, rule,
or court order. [MCL 21.241(1) and (2).]
DTMB is then directed to publish this information in a report and submit it to the
Legislature. MCL 21.241(3). And the report is to be updated annually. Id.In their answer to the complaint, the state defendants denied that they had not
complied with MCL 21.235 but admitted that they had not completed the reporting
requirements of MCL 21.241. When plaintiffs moved for summary disposition, they again
28
included no in-depth discussion of the mandamus issue. In fact, because of plaintiffs’ lack
of any explanation accompanying their request for mandamus relief, the state defendants
argued that the claim had been abandoned. We question, therefore, whether the request for
mandamus was even adequately pleaded.
Despite these shortcomings, the Court of Appeals granted plaintiffs their requested
relief, explaining:
It is clear that MCL 21.241 establishes a legislatively mandated duty
that the state, through its officers and departments, collect, report, and place
on the public record certain information regarding the state’s compliance
with the Headlee Amendment. The state has breached this duty. It is equally
clear that the acts required by these statutory provisions are ministerial and
that the failure of the state to undertake such acts undermines the right and
role of taxpayer oversight and enforcement conferred by Const 1963, art 9,
§ 32. As noted by plaintiffs, the failure of the state to comply with the
dictates of MCL 21.235(3) and MCL 21.241 “prevents taxpayers from
knowing what mandated activity is funded and what is unfunded” and
“prevents taxpayers from specifically identifying mandated activity that is
included within art. 9, § 30 calculations and what, if any, mandated activity
is not included.” For these reasons, we deem mandamus to be an appropriate
remedy and hereby direct the state through its officers and departments to
hereafter comply with the annual reporting requirements of MCL 21.235(3)
and MCL 21.241. [Taxpayers, 330 Mich App at 319-320 (opinion by
SHAPIRO, J.); id. at 332 (METER, J., concurring in part and dissenting in part);
id. at 333 (BORRELLO, P.J., concurring in part and dissenting in part).][35]
The panel later stated that the mandamus relief was to be “prospective only because
plaintiffs have waived their claim to compensation for the state’s past practice of counting
35
We note that plaintiffs’ claim in this Court—that the writ of mandamus is to
“prospectively requir[e] state officials, including the Auditor General, to exclude state
spending to fund state mandates from the numerator of the § 30 calculation”—is not the
relief the panel had granted. Moreover, as discussed in Part VII of this opinion, we hold
that the § 29 funding is not to be excluded from the § 30 calculation of total state spending
paid to units of local government.
29
funding for new or increased mandates for purposes of § 30.” Id. at 320 (opinion by
SHAPIRO, J.); id. at 332 (METER, J., concurring in part and dissenting in part); id. at 333
(BORRELLO, P.J., concurring in part and dissenting in part).
This holding is puzzling for many reasons. First, it is unclear why the Court of
Appeals granted plaintiffs a writ of mandamus regarding the reporting requirement of MCL
21.235(3) when it does not appear that plaintiffs refuted defendants’ assertion that the
governor complied with the reporting required by that statute. In their answer to the
complaint, the state defendants admitted only to not complying with the reporting
requirements imposed on DTMB in MCL 21.241. Second, it is unclear why the Court of
Appeals vaguely ordered “the state through its officers and departments” to comply with
the statutes when those statutes apply to the governor, MCL 21.235, who is not a named
defendant in this action, and to DTMB, MCL 21.241. Third, the panel’s explanation that
the writ of mandamus was to be “prospective only” because plaintiffs “waived their claim
to compensation for the state’s past practice of counting funding for new or increased
mandates for purposes of § 30” appears to be unrelated to the actual mandamus relief
granted—compliance with the annual reporting requirements of MCL 21.235(3) and MCL
21.241.
When the state defendants appealed this ruling, however, they only quarreled with
the Court of Appeals opinion insofar as it was unclear whether the mandamus relief granted
extended to defendant Office of the Auditor General. 36 While a writ of mandamus might
36
As a result, our grant order only directed the parties to address this particular facet of the
mandamus order. Taxpayers, 505 Mich at 1136.
30
be appropriate to compel the Auditor General to perform a statutory duty, see Thompson v
Auditor General, 261 Mich 624, 656; 247 NW2d 360 (1933), it is unclear what statutory
duty or other “clear legal duty” the Auditor General or the Office of the Auditor General
has in the reporting requirements of MCL 21.235 and MCL 21.241. The Court of Appeals
also failed to address whether these duties were ministerial or involved the exercise of
discretion.
In light of our disposition regarding Parts III(B) and (C) of the Court of Appeals
opinion and because we are unable to discern the nature of the relief requested or granted,
we vacate Part III(E) of the Court of Appeals opinion. Although we do not express an
opinion on the appropriateness of the remedy, we remand to the Court of Appeals for
clarification. On remand, the panel should specify which defendant is failing to perform
which clear legal duty and should analyze whether granting the extraordinary writ of
mandamus is warranted.
IX. CONCLUSION
We hold that Proposal A payments to school districts and § 29 state spending to
fund state-mandated local services and activities are both properly counted in the
calculation of “total state spending to all units of Local Government” under § 30 of the
Headlee Amendment. Accordingly, we affirm Part III(B) and reverse Part III(D) of the
Court of Appeals opinion. We also hold that the Court of Appeals erred when it held that
PSAs are “school districts” as the term is used in the Headlee Amendment and reverse that
conclusion reached in Part III(C) of the opinion. We further hold that PSAs themselves
are not political subdivisions of the state for purposes of the Headlee Amendment.
31
However, we remand this case to the Court of Appeals to consider whether PSA funding
should be counted as spending paid to a unit of “Local Government” if the authorizing
body of the PSA is a school district, intermediate school district, or community college.
Finally, we vacate Part III(E) of the opinion without prejudice and remand so that the Court
of Appeals may clarify its grant of mandamus relief or take other action not inconsistent
with this opinion.
Megan K. Cavanagh
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement (except as to
Part VIII)
Elizabeth M. Welch
32
STATE OF MICHIGAN
SUPREME COURT
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellants,
v No. 160658
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF AUDITOR
GENERAL,
Defendants-Appellees.
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellees,
v No. 160660
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF
AUDITOR GENERAL,
Defendants-Appellants.
VIVIANO, J. (concurring in part and dissenting in part).
I concur in the majority’s decision in all respects except as to Part VI regarding
funding for Public School Academies (PSAs), colloquially known as charter schools. I
dissent because I believe that PSAs, as a category, are political subdivisions of the state
under Const 1963, art 9, § 33. Therefore, I believe that state spending for PSAs is properly
considered “spending paid to all units of Local Government” for purposes of Const 1963,
art 9, § 30 of the Headlee Amendment.
I. TEXT OF THE CONSTITUTION
This case requires that we decide whether the phrase “Local Government” in § 30,
as defined in § 33, encompasses PSAs. To do so, we must “determine the text’s original
meaning to the ratifiers, the people, at the time of ratification.” Citizens Protecting
Michigan’s Constitution v Secretary of State, 503 Mich 42, 61; 921 NW2d 247 (2018)
(CPMC) (quotation marks and citation omitted). In other words, we must seek the
“common understanding” of the constitutional provisions to ascertain and give effect to
“the sense of the words used that would have been most obvious to those who voted to
adopt the constitution.” Straus v Governor, 459 Mich 526, 533; 592 NW2d 53 (1999).
Article 9, § 30 provides, “The proportion of total state spending paid to all units of
Local Government, taken as a group, shall not be reduced below that proportion in effect
in fiscal year 1978-79.” “Local Government” is defined in Article 9, § 33 as “any political
subdivision of the state, including, but not restricted to, school districts, cities, villages,
townships, charter townships, counties, charter counties, authorities created by the state,
and authorities created by other units of local government.”
2
The language of § 33 reveals that this section contemplates a broad and inclusive
definition of the term “Local Government,” given that it includes “any” political
subdivision. (Emphasis added.) “The commonly understood word ‘any’ generally casts a
wide net and encompasses a wide range of things.” People v Lively, 470 Mich 248, 253;
680 NW2d 878 (2004). 1 Pertinent definitions of the word “any” demonstrate that there is
no restriction on the type of political subdivision included. See, e.g., Webster’s Ninth New
Collegiate Dictionary (1984) (“1 : one or some indiscriminately of whatever kind: a : one
or another taken at random b : EVERY — used to indicate one
selected without restriction <[any] child would know that>”). 2 Second, the phrase
“including, but not restricted to” contemplates, by its own terms, that there are entities that
qualify as local governments beyond those that are explicitly listed; that is, the list of
entities is nonexhaustive. 3
1
See also People v Harris, 495 Mich 120, 132; 845 NW2d 477 (2014) (“[I]t is difficult to
imagine how the Legislature could have cast a broader net given the use of the words ‘any
act’ . . . .”).
2
See also The Random House Dictionary (1984) (defining “any,” in pertinent part, as
“every or all”). A court may use dictionaries from the relevant time period to determine
the meaning of a particular term in the Constitution. See CPMC, 503 Mich at 71 n 64.
Additionally, “[b]ecause ‘[d]ictionaries tend to lag behind linguistic realities,’ ” it is
appropriate to consult dictionaries from after 1978 to understand the meaning of the term
when the Headlee Amendment was ratified. People v Wood, 506 Mich 114, 133 n 5; 954
NW2d 494 (2020) (VIVIANO, J., dissenting), quoting Scalia & Garner, A Note on the Use
of Dictionaries, 16 Green Bag 2d 419, 423 (2013).
3
This definition in § 33 appears broader than that found in the implementing legislation
for the Headlee Amendment, MCL 21.231 et seq. MCL 21.233(5) defines “local unit of
government” as “a political subdivision of this state, including school districts, community
college districts, intermediate school districts, cities, villages, townships, counties, and
authorities, if the political subdivision has as its primary purpose the providing of local
governmental services for residents in a geographically limited area of this state and has
3
II. CHARACTERISTICS OF POLITICAL SUBDIVISIONS
To determine whether a PSA is a local government for purposes of the Headlee
Amendment, we must determine whether a PSA constitutes a “political subdivision” as
that term was understood in 1978. To do so, we look to see if PSAs have the pertinent
characteristics of such entities. As the majority explains, these characteristics include “a
geographically limited unit of government, formed to exercise political power, and that is
beholden to a local electorate.” 4 But this list of attributes is not exhaustive or complete; at
the time that the Headlee Amendment was ratified, political subdivisions possessed other
attributes. Importantly, political subdivisions operated as a division of the state to exercise
the power to act primarily on behalf of that area.” Section 33 of the Constitution expressly
provides that its list of political subdivisions is not exhaustive and does not contain the
same restriction of “political subdivision” to entities that are geographically limited and
that act on behalf of the people in that area. To the extent that the definition in MCL 21.233
diverges from that in § 33, the one in MCL 21.233 must yield. See Durant v State Bd of
Ed, 424 Mich 364, 392; 381 NW2d 662 (1985) (“The state may not avoid the clear
requirements of [the Headlee Amendment] either by specific statute or by implementation
of definitions adverse to the mandate of the people.”).
4
The majority’s description is supported not only by Attorney General Kelley’s opinion in
OAG, 1963-1964, No. 4,037, p 3, and People v Egleston, 114 Mich App 436, 440; 319
NW2d 563 (1982), but also by caselaw from other jurisdictions from which the Attorney
General and Egleston drew their conclusions. See, e.g., Lydecker v Drainage & Water
Comm’rs of Englewood Twp, 41 NJL 154, 157 (1879); Dugas v Beauregard, 155 Conn
573, 578; 236 A2d 87 (1967); Comm’r of Internal Revenue v Shamberg’s Estate, 144 F2d
998, 1004 (CA 2, 1944).
4
some governmental function for the public benefit. 5 They also had a capacity for self-
governance. 6 And political subdivisions sometimes wielded the power of taxation. 7
In determining the scope of the term “political subdivision” in § 33, it is important
to consider the attributes of the other entities on the list because the definition of political
subdivision must at least be broad enough to encompass them. In other words, we cannot
define the general term “political subdivision” in a way that would exclude one or more
5
See Egleston, 114 Mich App at 440 (“[I]ts existence [is] for the purpose of discharging
some function of local government . . . .”); OAG, 1963-1964, No. 4,037, at 3 (describing
that they are “ ‘organized for the public advantage’ ” and that “ ‘their chief design is the
exercise of governmental functions’ ”), quoting Lydecker, 41 NJL at 157. This particular
attribute—the exercise of governmental functions for the public benefit—was recognized
in many decisions prior to 1978, including those from other jurisdictions. See Lydecker,
41 NJL at 156-157; Shamberg’s Estate, 144 F2d at 1004; Dugas, 155 Conn at 578. See
also Fair v Sch Employees Retirement Sys of Ohio, 44 Ohio App 2d 115, 118-119; 335
NE2d 868 (1975) (“The term [political subdivision] may be used in more than one sense,
and it may designate a true governmental subdivision such as a county, township, etc., or
it may have a broader meaning, denoting any subdivision of the state created for a public
purpose although authorized to exercise a portion of the sovereign power of the state only
to a limited degree. Broadly speaking, a political subdivision of a state is a subdivision
thereof to which has been delegated certain functions of local government.”) (quotation
marks and citation omitted).
6
See Egleston, 114 Mich App at 440 (describing that a political subdivision has “authority
for self-government through officers selected by it”), citing Dugas, 155 Conn at 578; OAG,
1963-1964, No. 4,037, at 3 (describing that the electors of the subdivision possess “ ‘to
some extent . . . the power of local government’ ”), quoting Lydecker, 41 NJL at 157.
7
See OAG, 1963-1964, No. 4,037, at 3 (describing that political subdivisions have “ ‘the
sovereign power of taxation to meet their own necessities’ ”), quoting Lydecker, 41 NJL at
157; Dugas, 155 Conn at 578 (holding that an entity was not a political subdivision
because, among other things, it had “no power to levy taxes”); Shamberg’s Estate, 144 F2d
at 1003, 1005 (describing that the political subdivision at issue did not have the power of
taxation but noting that “the lack of taxing power . . . is only one of the attributes of
sovereignty”).
5
enumerated examples. Every constitutional provision “must be interpreted in the light of
the document as a whole, and no provision should be construed to nullify or impair
another.” 8 When specific examples follow a general term, as in § 33, this “can serve the
function of making doubly sure that the broad (and intended-to-be-broad) general term is
taken to include the specifics.” Scalia & Garner, Reading Law: The Interpretation of Legal
Texts (St. Paul: Thomson/West, 2012), p 204. “When the genus comes first (‘all buildings,
assembly houses, courthouses, jails, police stations, and government offices’) it is a
stranger that arrives, so to speak, without an introduction saying it is limited; one is invited
to take it at its broadest face value.” Id. at 205. 9 Accordingly, we must frame our
8
Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003).
9
Justice Antonin Scalia and Bryan Garner explain that the doctrine of ejusdem generis
does not and should not apply when specific examples follow a general term. This doctrine
states that “[w]here general words follow an enumeration of two or more things, they apply
only to persons or things of the same general kind or class specifically mentioned . . . .”
Reading Law, p 199. The editors of the treatise Sutherland Statutes and Statutory
Construction expanded this doctrine in 1973 to state that it also applies when specific words
follow general ones. Id. at 204, citing 2A Sands, Sutherland Statutes and Statutory
Construction (4th ed), § 47:17, p 166. However, Scalia and Garner explain that this
expansion was inappropriate; when specific examples follow a general term, this does not
restrict the general, in part, because “there is no commonly used verbal formulation . . . that
makes that [limiting] function clear in the specific-followed-by-general context. One never
encounters a provision that reads ‘all assembly houses, courthouses, jails, police stations,
government offices, and, without limitation by reason of the foregoing, all other
buildings.’ ” Reading Law, pp 204-205.
Scalia and Garner’s construction of the doctrine is in tension with our current
caselaw, which adopted Sutherland’s construction that ejusdem generis applies when a
general term is followed by specific ones. See Belanger v Warren Consol Sch Dist Bd of
Ed, 432 Mich 575, 583-584; 443 NW2d 372 (1989). For the reasons stated by Scalia and
Garner, I believe that our adoption of Sutherland’s construction was in error. However,
even if I were to apply a limiting construction under the ejusdem generis doctrine in this
context, it would not change my analysis or conclusion. Our interpretation of the general
6
understanding of the term “political subdivision” by referring to the list of examples
provided.
The first enumerated example relevant to my analysis is “school district.” 10 I share
some agreement with the majority that PSAs and traditional school districts are not exactly
alike. In particular, as the majority describes, school districts are governed by a school
board, whose members are directly elected by the voters in a school district. MCL
380.11a(5) to (7); MCL 168.642c. However, the majority downplays the other shared
characteristics of school districts that are pertinent here. First, school districts, like PSAs,
perform the governmental function of providing free public education. See Const 1963,
art 8, § 2. Second, school districts operate in a defined geographic area, see, e.g., MCL
380.626, but may also admit students from the same intermediate school district, see MCL
388.1705, or students residing in a contiguous intermediate school district, see MCL
388.1705c. Third, though less significant, school districts lack the power to raise operating
funds through the imposition of property taxes after the passage of Proposal A. See Const
1963, art 9, § 11.
term (political subdivision) would involve consideration of the characteristics of the
specific examples to determine if PSAs are “of the same general kind or class . . . .”
Reading Law, p 199. As my analysis demonstrates, consideration of these characteristics,
as set forth in the enumerated examples, leads to the conclusion that PSAs fall within the
term “political subdivision.”
10
I take no issue with the majority’s conclusion that MCL 380.501(1) does little to inform
our analysis. In MCL 380.501(1), the Legislature described that a PSA is a “school district
for the purposes of [Proposal A, Const 1963, art 9, § 11].” This is a legislative declaration
that PSAs are school districts only for the purposes of Proposal A, not the Headlee
Amendment.
7
In this context, it is also revealing that the ratifiers included on the list “authorities
created by the state, and authorities created by other units of local government” as express
examples of political subdivisions. Const 1963, art 9, § 33. An authority “is a corporation
controlled by a state that has delegated governmental power to that authority for the
performance of a state function, rather than acting directly through a state agency.”
4 Rathkopf’s The Law of Zoning and Planning (4th ed, June 2021 update), § 76:18. These
types of entities are created to “perform a special purpose or purposes, or to perform some
of the functions of privately-owned public service corporations.” 1 McQuillin, Municipal
Corporations (3d ed, August 2020 update), § 2:35. These authorities have independence
to administer their purposes and have a modicum of autonomy with regard to their separate
corporate legal status, freedom from normal governmental management controls, and
ability to support themselves monetarily. Id. They are generally considered an
“instrumentality of the state.” Id.
Considering authorities that were in existence in 1978 reveals three things about
political subdivisions that should affect our understanding of that term in § 33. 11 First, the
Legislature did not always define the geographic boundaries of these authorities with
precision. Many authorities in existence in 1978 had specific geographic boundaries, such
as those of the authorizing municipalities. 12 But that was not always true—some
11
Because we seek the common understanding of authorities in 1978, I look only to entities
that were in existence at that time. See notes 12 to 15 of this opinion.
12
See, e.g., MCL 121.2 (water authorities operate within the limits of the authorizing
municipalities); MCL 119.2 (metropolitan districts operate within the limits of the
authorizing municipalities). The Charter Water Authority Act, MCL 121.29 et seq., was
8
authorities, like garbage, rubbish, and dog-pound authorities created under MCL 123.301
et seq. had boundaries that were not well defined. 13 MCL 123.301(1) allows two or more
municipalities to incorporate authorities for these purposes. While the authority may
contract with any municipality that is a part of the authority, MCL 123.305(1), it may also
contract with “a city, village, or township that is not a part of the authority,” MCL
123.305(2). In other words, the authority has a choice of where to operate—and it may do
so outside the bounds of the authorizing municipalities. Other authorities in existence in
1978 had similar provisions. See MCL 254.311 (allowing the Mackinac Bridge Authority
to construct a “bridge,” which includes all roads, facilities, parks, equipment, etc.
connected to the project); 14 MCL 124.406(b) (allowing public transportation authorities to
operate in the 10 miles outside of the metropolitan transportation authority “if there is no
similar authority established or operating public transportation facilities within such 10
mile extra-territorial distance”). 15
Second, while some authorities had the power to levy taxes directly, many of these
authorities lacked the power of taxation and were instead funded by the authorizing body
or another public entity. 16 For example, the Mackinac Bridge Authority was funded by
enacted by 1957 PA 4, and the Metropolitan District Act, MCL 119.1 et seq., was enacted
by 1929 PA 312.
13
The joint garbage and rubbish disposal act was enacted by 1947 PA 179.
14
The Mackinac Bridge Authority act, MCL 254.311 et seq., was enacted by 1952 PA 214.
15
The Metropolitan Transportation Authorities Act, MCL 124.401 et seq., was enacted by
1967 PA 204.
16
Examples of authorities with direct taxing power include water authorities, MCL 121.18,
and metropolitan districts, MCL 119.3 and MCL 119.4.
9
bonds that the authority issued itself and by appropriations from the State Highway
Department. MCL 254.317. Metropolitan transportation authorities were prohibited from
levying taxes themselves; instead, they were funded by tolls, grants, appropriations from
participating counties and political subdivisions, or tax proceeds “collected by the state or
a political subdivision and returned or paid to the authority pursuant to law or contract.”
MCL 124.414(a) to (d). Similarly, garbage, rubbish, and dog-pound authorities had “no
direct taxing power” but were instead funded by the participating municipalities. MCL
123.308.
Third, and most importantly to the analysis here, the governing bodies of these
authorities were almost universally chosen—not by the electorate directly, but by the
participating municipalities or state officers. The board of commissioners for water
authorities was appointed by the legislative bodies of each participating city. MCL 121.6.
The same was true of metropolitan districts. MCL 119.6. Six board members of the
Mackinac Bridge Authority were appointed by the governor; the last was to be appointed
by the director of the Department of Transportation. MCL 254.302(2). Metropolitan
transportation authorities are governed by a nine-member board, all of whom are appointed
by the governor. MCL 124.410(1)(d). The governing boards of other authorities, such as
garbage, rubbish, and dog-pound authorities and building authorities, were to be selected
as provided in the articles of incorporation. See MCL 123.302; MCL 123.955.
III. ANALYSIS OF PUBLIC SCHOOL ACADEMIES
The characteristics of school districts and authorities outlined above inform the
analysis of whether PSAs should be considered “political subdivisions.” Like school
10
districts, PSAs provide educational services; these services are a governmental function
operated for the public benefit. See Const 1963, art 8, § 2. 17 As the majority recognizes,
the performance of these functions unquestionably constitutes the performance of
“essential public purposes and governmental functions of this state.” MCL 380.501(1).
This factor weighs heavily in favor of a finding that PSAs are political subdivisions.
Certain PSAs also operate in a limited geographic area in a similar manner to certain
authorities and school districts. If a PSA is authorized by the board of a school district,
intermediate school district, or community college, the PSA “shall not operate” outside the
authorizing body’s boundaries. MCL 380.502(2)(a) to (c). Enrollment in the PSA “shall
be open to all pupils who reside within the geographic boundaries of that authorizing
body,” though it “may be open to all individuals who reside in this state . . . .” MCL
380.504(3). 18 If the authorizing body is a state public university, enrollment “shall be open
to all pupils who reside in this state who meet the [PSA’s] admission policy.” Id. But, as
defendants correctly assert on appeal, enrollment will be practically limited to the PSA’s
immediate geographic area. A student living in Marquette likely will not enroll in a PSA
in Detroit, even if he or she could do so.
17
See also L M v Michigan, 307 Mich App 685, 697; 862 NW2d 246 (2014) (noting that
the Constitution requires the Legislature to “provide for and finance a system of free public
schools” but “leaves the actual intricacies of the delivery of specific educational services”
to schools themselves).
18
“Shall” in this context indicates a mandatory directive, whereas “may” indicates a
permissive one. See Manuel v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008) (“In general,
our courts have said that the term ‘may’ is ‘permissive,’ as opposed to the term ‘shall,’
which is considered ‘mandatory.’ ”) (citations omitted).
11
In this respect, PSAs resemble other authorities that do not have strict geographic
boundaries but will be confined by necessity to a certain area of operations. As discussed
above, garbage, rubbish, and dog-pound authorities can contract with any municipality,
whether the municipality is an authorizing body or not. The Mackinac Bridge Authority
has the authority to operate anywhere that is connected to the Mackinac Bridge. But these
authorities will be practically confined to the specific area in which they operate. So, too,
are PSAs geographically confined, even if they may be similarly allowed, in some
circumstances, to operate in any part of the state or accept students residing anywhere in
the state. This practical limitation is similar to Michigan’s school-of-choice program in
which public schools may choose to accept students residing within the same intermediate
school district, MCL 388.1705(2), or residing in a contiguous intermediate school district,
MCL 388.1705c. School districts therefore may accept students from outside their own
boundaries, but enrollment is still limited to a particular geographic area. Contrary to the
majority’s conclusion, this factor weighs in favor of a finding that PSAs are political
subdivisions.
Next, while PSAs lack the power of taxation—“[a] public school academy may not
levy ad valorem property taxes or another tax for any purpose,” MCL 380.503(9)—this
factor is not dispositive. The ability to tax “is only one of the attributes of sovereignty.”
Shamberg’s Estate, 144 F2d at 1005. Further, as noted above, authorities often lack this
power, yet Const 1963, art 9, § 33 still describes them as examples of political subdivisions.
And, as also noted above, school districts also now lack the power to raise operating funds
through the imposition of property taxes. Therefore, it is clear that the ability to tax is not
a dispositive attribute of a political subdivision.
12
Finally, contrary to the majority’s conclusion, PSAs have sufficient ability to self-
govern and have electorate control. The majority correctly notes that the “governing body
of a PSA is not elected by voters” and, thus, that the PSA “is under the immediate control
of its authorizing body.” 19 The majority makes much of the supposed lack of electorate
control or self-governance, in part because of the difference between the boards of PSAs
and the boards of traditional school districts, which are directly elected and, therefore, have
a greater capacity for self-governance. 20 However, the majority fails to acknowledge that
governing bodies of authorities are also not directly elected and, thus, have a similarly
limited ability to self-govern.
In Council of Organizations & Others for Ed About Parochiaid, Inc v Governor,
455 Mich 557, 571; 566 NW2d 208 (1997), we addressed whether PSAs were “public
schools” for the purpose of Const 1963 art 8, § 2, which requires the Legislature to
“maintain and support a system of free public elementary and secondary schools . . . .” The
plaintiffs there argued, among other things, that PSAs were not public schools because a
PSA “is run by a private board of directors and because the authorizing body has no means
for selecting members of the board . . . .” Id. at 575. We disagreed, holding that through
19
A PSA is governed by a board of directors, MCL 380.502(1), but the authorizing body
adopts a resolution to establish “the method of selection, length of term, and number of
members of the board of directors,” MCL 380.503(5). The authorizing body also oversees
the PSA, and that oversight must be “sufficient to ensure that the board of directors is in
compliance with the terms of the contract and with applicable law.” MCL 380.507(1)(d).
20
The majority also notes that PSAs are nonprofit corporations, but this, too, misses that
some authorities are created as nonprofit entities. See MCL 390.951 (“There is created a
nonprofit authority as an agency in the department of education, to be known as the
‘Michigan higher education assistance authority’.”).
13
MCL 380.503(3), 21 “the Legislature has mandated the board of director’s selection
process” and could “change this process at any time.” Id. Further, we explained that while
the board of a PSA is not chosen by the electorate or the Legislature, “the board of the
authorizing bodies is publicly elected or appointed by public bodies.” Id. Therefore, “the
public maintains control of the schools through the authorizing bodies.” Id. at 576.
As we explained in Council of Organizations, the public still maintains control over
PSAs through the public authorizing bodies. This is analogous to how authorities work.
As discussed above, authorities in existence in 1978 were not controlled by the electorate
but rather by the participating municipalities or the governor. Those public bodies and
officials are directly elected, giving the public direct control over the authorities only
through an intermediary. Further, some of these authorities are governed by articles of
incorporation that are expressly adopted by the legislative body of municipalities. See
MCL 123.301; MCL 123.955. In these latter examples especially, the municipalities have
the ability to control the self-governance of the authority through the adoption or rejection
of the articles of incorporation. 22 Because they have a similar governance structure, PSAs
have a sufficient ability to self-govern to qualify as a political subdivision.
The factors of electoral control and self-governance weigh in favor of finding that
PSAs are political subdivisions. The electorate still has control over PSAs through the
21
This provision is now codified in MCL 380.503(5). See note 19 of this opinion.
22
Attorney General Kelley deemed this indirect control to be sufficient when he stated that
“ ‘to the electors residing within each [political subdivision] is, to some extent, committed
the power of local government, to be wielded either mediately or immediately . . . .’ ”
OAG, 1963-1964, No. 4,037, at 3, quoting Lydecker, 41 NJL at 157 (emphasis added). If
the electors have mediate, i.e., indirect, control of an entity, as is true with PSAs, that
indirect control is enough to support a finding that the entity is a political subdivision.
14
authorizing body, and PSAs still possess the ability to run their own affairs, even if the
authorizing body oversees those affairs. A political subdivision does not need to have
either direct electoral control or total self-governance for purposes of the Headlee
Amendment. Rather, in light of the authorities in existence at the time of ratification, so
long as there is some public, electoral control of a political subdivision through an
authorizing body, municipality, or state officer, that is enough to weigh in favor of finding
that an entity is a political subdivision. If authorities are expressly considered political
subdivisions for purposes of § 33 and the electorate has the same level of control over both
these authorities and PSAs, we should treat PSAs in the same manner as authorities.
Therefore, under a proper interpretation of § 33, PSAs qualify as political
subdivisions.
IV. CONCLUSION
For these reasons, I respectfully dissent from Part VI of the majority opinion and
would hold that state spending for PSAs qualifies as part of the “total state spending paid
to all units of Local Government” under § 30. Accordingly, I would affirm the judgment
of the Court of Appeals on that issue.
David F. Viviano
Brian K. Zahra
15
STATE OF MICHIGAN
SUPREME COURT
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellants,
v No. 160658
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF
AUDITOR GENERAL
Defendants-Appellees.
TAXPAYERS FOR MICHIGAN
CONSTITUTIONAL GOVERNMENT,
STEVE DUCHANE, RANDALL BLUM,
and SARA KANDEL,
Plaintiffs-Appellees,
v No. 160660
STATE OF MICHIGAN, DEPARTMENT
OF TECHNOLOGY, MANAGEMENT
AND BUDGET, and OFFICE OF
AUDITOR GENERAL,
Defendants-Appellants.
CLEMENT, J. (concurring in part and dissenting in part).
I concur in full with the Court’s resolution of the substantive Headlee Amendment
claims. I dissent only as to the Court’s disposition of the state’s challenge to the writ of
mandamus issued by the Court of Appeals (acting as a trial court) in Docket No. 160660.
While I concur with the Court’s decision to vacate the entire mandamus portion of the
Court of Appeals opinion, 1 because this aspect of plaintiffs’ case was inadequately pleaded
I would not direct that Court to continue struggling on remand with an issue that is not
adequately framed.
Any debate about whether a case has been adequately pleaded obviously should
begin with a discussion of the elements of the action. “To support mandamus, plaintiffs
must have a clear legal right to performance of the specific duty sought to be compelled;
defendants must have the clear legal duty to perform such act; and it must be a ministerial
act . . . .” Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935). A “ministerial act” is
one “where the law prescribes and defines the duty to be performed with such precision
and certainty as to leave nothing to the exercise of discretion or judgment.” Id. (quotation
marks and citation omitted).
While the majority of the Court of Appeals’ jurisdiction is appellate, it has some
limited original jurisdiction, including over actions challenging compliance with the
Headlee Amendment, see Const 1963, art 9, § 32, so this action was initiated when
plaintiffs filed a complaint in that Court. The named defendants were the state itself; the
1
Although the lead opinion in the Court of Appeals was only signed by Judge SHAPIRO,
the partial dissents from Judges METER and BORRELLO confined their disagreement with
Judge SHAPIRO to other issues and otherwise concurred with his analysis of the mandamus
component of this case. As a result, I refer to Judge SHAPIRO’s opinion as the opinion of
the Court when analyzing this mandamus question.
2
Department of Technology, Management and Budget; and the Office of the Auditor
General. As the majority notes, “There are three specific counts of plaintiffs’ complaint at
issue in this appeal,” and there was also a fourth count that was disposed of (relating to
highway funding) before the case reached us. All four counts were substantive Headlee
claims; not one of them was a count seeking a writ of mandamus. As the majority notes,
the only mention of mandamus in the complaint is a single line in the prayer for relief
asking for “[m]andamus relief directing the State of Michigan to fully comply with the
reporting requirements of MCL 21.235 and 21.241[.]” The complaint offers no allegations
about what legal duties those statutes impose on any public officers, and indeed, arguably
no actual public officers are named as defendants, inasmuch as corporate entities (the state,
a department, and an office) are named rather than actual officers. The majority notes that
plaintiffs’ briefing in the Court of Appeals “did not provide any argument or explanation
about this requested relief . . . .”
In its opinion resolving the case, the Court of Appeals granted mandamus relief to
plaintiffs. The opinion, however, is as vague as plaintiffs’ complaint. The Court of
Appeals noted that MCL 21.241 “establishes a legislatively mandated duty that the state,
through its officers and departments, collect, report, and place on the public record certain
information regarding the state’s compliance with the Headlee Amendment,” but “[t]he
state has breached this duty.” Taxpayers for Mich Constitutional Gov’t v Michigan (On
Reconsideration), 330 Mich App 295, 319; 948 NW2d 91 (2019) (opinion by SHAPIRO, J.).
After concluding that the requested actions were ministerial, the Court “deem[ed]
mandamus to be an appropriate remedy and hereby direct[ed] the state through its officers
and departments to hereafter comply with the annual reporting requirements of MCL
3
21.235(3) and MCL 21.241.” Id. at 320 (opinion by SHAPIRO, J.). Its opinion did not
describe which officers need to perform which duties. The state sought leave to appeal in
this Court, asking for relief specific to the Auditor General. The state phrased the question
presented here as:
The Auditor General reviews and determines how state funds are
spent and examines whether the State properly accounts for spending to units
of local government. The Court of Appeals’ opinion did not expressly
address the issue of mandamus against the Auditor General but may imply
that its review and determination under existing laws were subject to
mandamus relief. Would mandamus relief as to the Auditor General, based
on the claims raised for the first time in this case, i.e., despite no prior court
decision that its processes were contrary to law, represent clear error?
In my view, the state’s conditional phrasing in its application for leave to appeal
should have been a red flag that what it was asking for was an advisory opinion. We were
effectively asked: if a court tried to hold the Auditor General in contempt, would that be
legally viable (and if so, under what circumstances)? Baked into that are questions about
the scope of the Auditor General’s responsibilities under the pertinent statutes as well as
how the Auditor General properly would respond to the substantive Headlee ruling.
Judicial review of these questions is frustrated by the fact that plaintiffs have failed to allege
any specific legal duty they want performed, nor have they “connected the dots” between
any such duty and a specific officer who must perform it. The confusion is underlined by
the fact that plaintiffs’ brief in Docket No. 160660 says that “[t]he only mandamus relief
at issue on this appeal is the Court of Appeals grant of mandamus prospectively requiring
state officials, including the Auditor General, to exclude state spending to fund state
mandates from the numerator of the [Const 1963, art 9, § 30] calculation.” This appears
4
nowhere in the Court of Appeals opinion. The mandamus relief the Court of Appeals
directed relates to reporting requirements under MCL 21.235 and MCL 21.241.
We are faced, it seems to me, with a mess. On the one hand, it appears that the
state’s appeal essentially asks us for advice, which we are not in the business of providing.
But the reason the state wants advice is because the Court of Appeals judgment against the
state is extremely vague—as vague as plaintiffs’ complaint. Further contributing to the
confusion is that plaintiffs themselves do not appear to accurately represent what it is that
the Court of Appeals ordered; their characterization of what is “at issue on this appeal”
appears ungrounded in the text of the Court of Appeals opinion we are asked to review.
Our pleading rules require that a complaint contain “[a] statement of the facts . . . on which
the pleader relies in stating the cause of action, with the specific allegations necessary
reasonably to inform the adverse party of the nature of the claims the adverse party is called
on to defend[.]” MCR 2.111(B)(1) (emphasis added). It seems clear to me that this
complaint is inadequate. It has long been established that mandamus is an action at law,
see Woodworth v Old Second Nat’l Bank, 144 Mich 338, 338-339; 107 NW 905 (1906),
and as with any other action at law, the burden is on the plaintiff to plead facts establishing
the elements of the cause of action. That simply is not the case here—plaintiffs do not
even list mandamus as one of the counts in their complaint. Perhaps as a result, plaintiffs’
complaint fails to allege any “specific duty” to be performed, nor does it identify any
“defendants [who] have the clear legal duty to perform such act[.]” Toan, 271 Mich at 34.
In response to this state of affairs, the majority “vacate[s] the grant of mandamus
and remand[s] to the Court of Appeals to clarify its reasoning or reconsider its decision as
it deems appropriate.” While I certainly prefer this disposition of the case as opposed to
5
affirming the judgment of the Court of Appeals, I would simply vacate this aspect of the
judgment as having been erroneously rendered and would not direct the Court of Appeals
to continue shadowboxing with this poorly pleaded aspect of the case. This is all the more
so when we consider the arm’s length manner in which business is conducted in the Court
of Appeals; it has no convenient mechanisms for a panel of its judges to take the steps a
trial court might take to straighten out confusion of this sort, like holding a status
conference with the litigants. See MCR 2.112, 480 Mich clviii, clx-clxii (YOUNG, J.,
concurring) (discussing the “practical difficulties associated with the Court of Appeals[’]
exercise of original jurisdiction” given that “[n]one of the tools available to our circuit
courts for processing trials are available” to it and its “primary function is revisionary,”
leaving it “ill-equipped to evaluate the claims and defenses in a complex and fact-intensive
original action without the assistance of the parties in developing the factual bases for their
claims and defenses”). I believe that the best resolution of the mandamus issue would
simply be to hold that plaintiffs’ complaint was inadequate and vacate Part III(E) of the
Court of Appeals opinion without directing the Court to work further on the issue on
remand.
Elizabeth T. Clement
6