Beth Bauer v. County of Saginaw

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BETH BAUER, FOR PUBLICATION
April 16, 2020
Petitioner-Appellant,
v No. 344050
Saginaw Circuit Court
SAGINAW COUNTY and SAGINAW COUNTY LC No. 17-032353-AA
PROSECUTOR,
Respondents-Appellees.
Before: O’BRIEN, P.J., and JANSEN and GLEICHER, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
This case presents a clash of two statutes.
The prosecutor’s appointment/tenure statute, MCL 49.35, enacted in 1925, vests an elected
prosecutor with robust powers to make employment decisions. The Political Freedom Act, MCL
15.401 et seq., enacted in 1976, broadly protects the right of public-sector employees to engage in
political activity without fear of retribution. The majority finds that the statutes are fundamentally
incompatible and holds that the Political Freedom Act must yield. In my view the two statutes
may be reconciled in a manner that gives force and effect to both.
I
The material facts are simple and straightforward. In 1989, Saginaw County’s then
prosecuting attorney, Michael Thomas, hired plaintiff Beth Bauer as his legal office manager.
Bauer and other clerical employees were members of the United Auto Workers. The terms and
conditions of their employment were covered by a collective bargaining agreement. The 2008
CBA provided that Bauer’s was a just-cause employment position for as long as she held it.
In 2012, John McColgan defeated Thomas and became the new prosecutor for Saginaw
County. McColgan fired Bauer. The notice of her discharge stated: “ ‘[s]ervices no longer needed.
Are an at-will employee under state statute.’ ” Bauer v Saginaw Co, 641 Fed Appx 510, 513 (CA
6, 2016).
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Bauer brought an action in the United States District Court raising federal and state-law
claims; that case did not survive summary judgment. See id. She also filed an administrative
complaint in the Michigan Administrative Hearing System asserting that she was discharged in
violation of the Political Freedom Act, MCL 15.04 et seq. Defendants McColgan and Saginaw
County responded that McColgan had the authority to fire Bauer pursuant to the prosecutor’s
appointment/tenure statute, MCL 49.35. An administrative law judge found that Bauer’s was a
just-cause position and that “she was discharged because of her political activities on behalf of
former Prosecuting Attorney Thomas.” The discharge violated the Political Freedom Act, the ALJ
ruled. The prosecutor’s appointment/tenure statute did not apply, the ALJ determined, because
Bauer was hired by Saginaw County and not McColgan.
Defendants sought review in the circuit court, which reversed the ALJ. We granted leave
to appeal. Bauer v Saginaw Co, unpublished order of the Court of Appeals, entered December 14,
2018 (Docket No. 344050).
II
The Political Freedom Act protects the right of public employees to engage in political
activities outside the workplace. It provides that “an employee of a political subdivision of the
state may . . . [e]ngage in . . . political activities on behalf of a candidate or issue in connection
with partisan or nonpartisan elections.” MCL 15.403(1)(d). The act also includes a remedy
provision, as follows:
(1) An employee of a political subdivision of this state whose rights under this act
are violated or who is subjected to any of the actions prohibited by section 5 may
make a complaint to that effect with the department of labor. The department shall
hold a hearing to determine whether a violation has occurred. If a violation has
occurred, the department shall so state on the record and may order any of the
following:
(a) Issuance of back pay.
(b) Reinstatement as an employee.
(c) Attorney fees.
(d) Reinstatement of all work-related benefits, rights or privileges which,
but for the violation by the employer, would have been accrued by the employee.
[MCL 15.406.]
The prosecutor’s appointment/tenure statute states that “assistant prosecuting attorneys and
other employees appointed by said prosecuting attorney . . . shall hold office during the pleasure
of the prosecuting attorney.” MCL 49.35. The majority holds that Bauer is an employee subject
to the prosecutor’s appointment/tenure statute because she falls within the scope of MCL 49.31:
In each county of the state of Michigan, the board of supervisors of such
counties, at their regular annual meeting, may, by resolution authorize the
appointment by the prosecuting attorney of said county of as many assistant
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prosecuting attorneys as said board of supervisors shall deem necessary, and shall
in addition authorize the appointment by said prosecuting attorney, of such
investigating officers, clerks, stenographers and other clerical employees as said
board of supervisors shall deem necessary.
I concur with the majority’s conclusion that Bauer was a coemployee of the prosecutor and the
county; this conclusion is compelled by Council No 11, American Federation of State, Co & Muni
Employees (AFSCME) v Mich Civil Serv Comm, 408 Mich. 385; 292 NW2d 442 (1980).
The majority further holds that the Political Freedom Act does not restrict the prosecutor’s
statutory authority to fire at will. I cannot agree with this proposition. In my view, the two statutes
can and must be harmonized. Alternatively, I would hold that the more recently enacted of the
two—the Political Freedom Act—controls.
A
The controversy before us is narrower than the majority opinion apprehends, and as a
starting point the question presented must be correctly identified. The majority declares that “the
Legislature specifically endowed the prosecutor with the authority to appoint . . .and the power to
remove appointed employees at will . . . .” True enough. The majority then homes in on the
prosecutor’s appointment power, proclaiming that the Political Freedom Act “has no language
applicable to the prosecutor’s appointment authority.” Bauer does not contest the prosecutor’s
power to hire whomever the prosecutor selects. Rather, Bauer asserts that the Political Freedom
Act circumscribes the prosecutor’s power to fire. The prosecutor’s hiring powers are not at issue
here, and by raising them the majority muddles the legal analysis. McColgan did not hire Bauer,
he fired her. The question is whether that act was wrongful.
The majority addresses this issue only superficially, declaring that “[i]n reading the two
statutes together, there is no provision in the Political Freedom Act that restricts the prosecutor’s
statutory authority under the prosecutors’ appointment/tenure statute.” This is an obvious and
accurate observation, but neither relevant nor helpful. Statutes often appear to conflict precisely
because the newer fails to reference the older, and yet both seem to cover precisely the same
ground. See, e.g., Apsey v Mem Hosp, 477 Mich. 120, 124; 730 NW2d 695 (2007) (holding in a
case that involved two statutes addressing the notarization of out-of-state affidavits—one passed
in 1963 and the other in 2003—that the Legislature intended for the newer statute to serve as “an
alternative” for authenticating out-of-state affidavits).
The majority’s simplistic approach would reduce the construction of conflicting statutory
texts to judicial selection of the statute that should control, based solely on the judge’s assessment
of which expresses better policy. And that is precisely what the majority does here, concluding
that enforcement of the Political Freedom Act would “lead to the ‘absurd result that every newly
elected official would be bound to reappoint his predecessor[’]s appointees, if they engaged in
political activity in support of his predecessor.’ ” Again, this case does not involve “appointment;”
Bauer’s claim rests entirely on her termination. More to the point, I find nothing “absurd” in the
proposition that prosecuting attorneys, like every other employer, must follow the law.
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Properly framed, Bauer’s case asks us to decide whether despite the powers granted by the
prosecutors’ appointment/tenure statute, defendants’ decision to fire Bauer was nonetheless
wrongful because it contravened the Political Freedom Act. A long line of cases governing
statutory interpretation guides us to the answer: it was.
The majority never engages with this line of caselaw. Instead, it sidesteps the task of
statutory reconciliation by asserting that regardless of whether Bauer was terminated because of
her political activity, she lacks any “private cause of action for enforcement of the Act.” But Bauer
did not file a case implicating a “private cause of action;” she brought an administrative claim
under MCL 15.406. That statute specifically permits aggrieved public employees “whose rights
are violated” to complain to the Department of Labor, MCL 15.406(1), which is precisely what
Bauer did. The same statutory section vests the department with the authority to “hold a hearing
to determine whether a violation has occurred.” Id. If the department finds a violation, it is
empowered to award back pay, reinstatement, and attorney fees—exactly what occurred here.1
Once again, the majority took a detour leading to a dead end.
Which brings us to the majority’s resolution of what it describes as “the interplay between
the prosecutors’ appointment/tenure statute and the Political Freedom Act.” Aside from pointing
out that no language in the Political Freedom Act applies to prosecutors, the majority offers nothing
other than that enforcement of the Political Freedom Act would be “absurd.” Yet there is a clear
pathway allowing for the accommodation of both statutes. In my view, the prosecutors’
appointment/tenure statute holds firm, but must be qualified by a prohibition on terminating just-
cause employees based solely on their protected political activities.
B
My analysis governing the construction of the “interplay” between two apparently
conflicting statutes rests on well-established interpretive principles. “[W]hen two statutes are
capable of coexistence, it is the duty of the courts to regard each as effective.” Radzanower v
Touche Ross & Co, 426 U.S. 148, 155; 96 S. Ct. 1989; 48 L. Ed. 2d 540 (1976) (cleaned up).2 Our
1
Because defendants did not challenge the form of Bauer’s administrative action, the parties did
not brief this issue. I suggest that although Bauer did not pursue one, a private cause of action
does exist. “It is well settled . . . that an employer is not free to discharge an employee at will
when the reason for the discharge contravenes public policy.” McNeil v Charlevoix Co, 484 Mich.
69, 79; 772 NW2d 18 (2009). In Suchodolski v Mich Consol Gas Co, 412 Mich. 692, 695; 316
NW2d 710 (1982), our Supreme Court pointed out that “some grounds for discharging an
employee are so contrary to public policy as to be actionable. Most often these proscriptions are
found in explicit legislative statements prohibiting the discharge, discipline, or other adverse
treatment of employees who act in accordance with a statutory right or duty.” In my view, a
violation of the Political Freedom Act comfortably fits within this realm.
2
This opinion uses the new parenthetical “cleaned up” to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets,
alterations, internal quotation marks, and unimportant citations have been omitted from the
quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
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Supreme Court adheres to the same axiom. “It is a fundamental rule of statutory construction that
apparently conflicting statutes should be construed, if possible, to give each full force and effect.”
In re Midland Publishing Co, Inc, 420 Mich. 148, 163; 362 NW2d 580 (1984) (cleaned up).3
Recently our Supreme Court echoed the same sentiment, encouraging courts to “construe statutes,
claimed to be in conflict, harmoniously,” and to avoid a construction that impliedly eliminates the
effect of one statute in favor of another. Int’l Business Machines Corp v Dep’t of Treasury, 496
Mich. 642, 651-652; 852 NW2d 865 (2014).
Our state’s jurisprudence offers many examples of this approach. In Rathbun v State of
Michigan, 284 Mich. 521; 280 N.W. 35 (1938), the dueling statutes involved gas, oil and mineral
rights. The plaintiff claimed that she had obtained absolute title in fee to land deeded to her by her
homesteader father-in-law, and that her absolute title included the mineral rights. Id. at 529-530.
In support of this argument, she invoked an 1893 tax statute which she contended “provided for
the conveyance by the State of an absolute title in fee to the homesteader . . . without any severance
of the mineral rights[.]” Id. at 530. The State insisted that when it provided the homesteader with
his certificate and deed, it had reserved the mineral rights pursuant to a 1909 statute empowering
the State “to sever the absolute fee in the surface rights from the absolute fee in the mineral
rights[.]”. Id. at. 536. The Supreme Court observed that the newer statute was passed to protect
and conserve the state’s natural resources, and was “designed to correct existing evils, to remedy
a deplorable situation which had grown out of private exploitation of the natural resources of the
State.” Id. at 536-537.
The Supreme Court rejected the plaintiff’s argument that the two statutes hopelessly
conflicted, despite that the 1893 tax statute clearly stated that a homesteader deed “shall convey
an absolute title to the lands sold.” Id. at 533. “The statutory provision that the State convey to a
homesteader an absolute title in fee did not require that the State convey . . . an absolute title in fee
to the mineral rights, as well as to the surface rights of the lands in question,” the Supreme Court
explained. Id. at 536. Rather, the Court construed the two statutes together seeking a way of
harmonizing them. It interpreted the subsequently enacted statute as indicating “a growth of
general public policy with regard to such disposition and conservation of these resources of the
State,” and did not “infringe” on any other statute. Id. at 545-546. The Court reasoned:
It is a well-established rule that in the construction of a particular statute, or in the
interpretation of its provisions, all statutes relating to the same subject, or having
the same general purpose, should be read in connection with it, as together
constituting one law, although they were enacted at different times, and contain no
reference to one another. The endeavor should be made, by tracing the history of
legislation on the subject, to ascertain the uniform and consistent purpose of the
legislature, or to discover how the policy of the legislature with reference to the
3
In re Midland Publishing Co, 420 Mich. 148, 163; 362 NW2d 580 (1984), further provides: “It is
also well established that a later-enacted specific statute operates as an exception or a qualification
to a more general prior statute covering the same subject matter and that, if there is an
irreconcilable conflict between two statutes, the later-enacted one will control.” This approach
provides an alternate ground for reversing the circuit court.
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subject matter has been changed or modified from time to time. In other words, in
determining the meaning of a particular statute, resort may be had to the established
policy of the legislature as disclosed by a general course of legislation. With this
purpose in view therefore it is proper to consider, not only acts passed at the same
session of legislature, but also acts passed at prior and subsequent sessions. [Id. at
543-544 (cleaned up).]
Our Supreme Court recently reembraced the Rathbun approach in Int’l Business Machines
Corp, 496 Mich. at 652-653.4 See also Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich.
569, 577; 548 NW2d 900 (1996) (“The guiding principle is, to be sure, that we are obliged to
determine the will of the Legislature; but where the intent of the Legislature is claimed to be
unclear, it is our duty to proceed on the assumption that the Legislature desired both statutes to
continue in effect unless it manifestly appears that such a view is not reasonably plausible.”). Other
cases featuring this reconciliation approach include Apsey, 477 Mich. 120, and Stenzel v Best Buy
Co, 503 Mich. 199; 931 NW2d 554 (2019) (harmonizing a statute and a court rule).
Similar to Rathbun, the two apparently conflicting statutes at issue in this case were passed
at different times and were intended to address different concerns. We must not lose sight of the
fact that the newer statute, here and in Rathbun, was “designed to correct existing evils.” The
legislative purpose clearly expressed in the Political Freedom Act is to safeguard the rights of
people like Beth Bauer to engage in political activity without fear or losing their jobs. And the
Political Freedom Act is but one of several acts protecting the civil rights of public-sector
employees that postdate the enactment of the prosecutors’ appointment/tenure statute.
In 1976, our Legislature passed two civil rights statutes applicable to the employees of
political subdivisions, including Bauer: the Civil Rights Act (CRA), MCL 37.2101 et seq., and the
Handicappers’ Civil Rights Act (amended by 1998 PA 20 and renamed the Persons with
Disabilities Civil Rights Act (PWDCRA)), MCL 37.1101 et seq. In 1980, the Legislature enacted
the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. All three of these statutes extend
protection against wrongful termination to employees of political subdivisions of the state. See In
re Bradley Estate, 494 Mich. 367, 393 n 60; 835 NW2d 545 (2013) (observing that the PWDCRA
defines “ ‘employer’ to expressly include state actors” in MCL 37.1103(g)); Anzaldua v Band, 457
Mich. 530, 533-534; 578 NW2d 306 (1998) (explaining that “the state and its political subdivisions
are to be considered employers” for the purposes of the WPA); Manning v Hazel Park, 202 Mich
App 685, 699; 509 NW2d 874 (1993) (“Concerning the sex and age discrimination claims,
defendants do not have a governmental immunity defense because the [CRA] specifically includes
state and political subdivisions and their agents and employers covered by the act.”).
Each of these three acts permits employees to sue if discharged from employment on a
protected ground. The CRA prohibits an employer from “discharg[ing]” an employee “because of
religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL
37.2202(1)(a). The PWDCRA prohibits an employer from “[d]ischarg[ing] . . . an individual . . .
4
The dissent in Int’l Business Machines Corp also cited Rathbun approvingly, but maintained that
the two tax statutes under consideration could not be reconciled. Int’l Business Machines Corp v
Dep’t of Treasury, 496 Mich. 642, 672; 852 NW2d 865 (2014) (MCCORMACK, J., dissenting).
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because of a disability or genetic information that is unrelated to the individual’s ability to perform
the duties of a particular job or position.” MCL 37.1202(1)(b). The WPA provides that “[a]n
employer shall not discharge . . . an employee . . . because the employee . . . reports . . . a violation
or a suspected violation of a law or regulation . . . .” MCL 15.362.
The Political Freedom Act extends similar protections by prohibiting employers from
penalizing employees who exercise their right to participate in the political process. It qualifies as
reform legislation intended to remedy a problem the Legislature evidently perceived. See Council
No 11, 408 Mich. 385 (providing a more in-depth discussion of the act). I offer the civil rights
statutes as comparators to the Political Freedom Act because they help to demonstrate that the two
statutes at issue in this case can be reconciled in a manner that honors both.
The Supreme Court’s holding in Mack v Detroit, 467 Mich. 186; 649 NW2d 47 (2002), is
also instructive. The plaintiff in Mack brought a sexual orientation discrimination case against the
city of Detroit, invoking the declaration of rights set forth in the City Charter. Id. at 189. The
Supreme Court held that the governmental tort liability act (GTLA), MCL 691.1407 et seq.,
precluded her claim. Mack, 467 Mich. at 189-190. The Supreme Court pointed out, however, that
“there are other areas outside the GTLA where the Legislature has allowed specific actions against
the government to stand, such as the [CRA].” Id. at 195. The CRA, however, did not encompass
the plaintiff’s sexual orientation discrimination claim. Id. at 196. In enacting the Political Freedom
Act, the Legislature also “allowed specific actions against the government” to go forward, as the
act defines the individuals covered by it to include “an employee of a political subdivision of the
state who is not an elected official.” MCL 15.401. The act specifically permits public employees
to engage in political activity and empowers them to bring a claim for any infringement of that
right. By defining those covered so capaciously, the Legislature obviously intended that public-
sector employees in the executive branch would receive the law’s benefit.
Despite that the prosecutors’ appointment/tenure statute affords a county prosecutor
seemingly unbridled authority to fire an employee covered by the statute, it is beyond
comprehension that a prosecutor could fire an employee based on race, sex, disability status, or
because the employee engaged in protected whistleblower activity. Although the prosecutor’s
powers are broad, they do not extend to knowingly and deliberately violating these other laws.
Similarly, the prosecutor’s powers should not be construed so broadly as to excuse a violation of
the Political Freedom Act. Had the Legislature intended to immunize the prosecutor (or any other
public official) from the reach of the civil rights statutes, the whistleblower act, or the Political
Freedom Act, it surely could have done so.
Interpreting the prosecutors’ appointment/tenure statute in a manner that preserves its
essence permits the survival of both statutes and comports with our duty to reconcile rather than
displace. In my view, the Political Freedom Act merely tempers the reach of the prosecutor’s
discretionary authority. Analogously, the Supreme Court reached the same conclusion in Council
No 11, 408 Mich. 385, holding that when it came to regulating employees’ political activity, the
power of the Civil Service Commission to make rules and regulations governing the civil service
had to give way to the act.
But if the majority is correct and the statutes are truly irreconcilable, the majority has
chosen the wrong one to enforce. Where two laws conflict and cannot be harmonized, the general
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rule is that the last one enacted controls. Metro Life Ins Co v Stoll, 276 Mich. 637, 641; 268 N.W.
763 (1936). See also Jackson v Mich Corrections Comm, 313 Mich. 352, 357; 21 NW2d 159
(1946) (cleaned up) (“The rule as stated in the foregoing and other decisions involving the question
recognizes that if the provisions of a later statute are so at variance with those of an earlier act, or
a part thereof, that both cannot be given effect then the later enactment control and there is a repeal
by implication.”).
C
The prosecutors’ appointment/tenure statute indisputably afforded McColgan with the
authority to hire whomever he wanted as his legal office manager. But the Political Freedom Act
prohibited him from terminating Bauer’s employment in his office on the sole ground that she had
worked on behalf of his competitor for the office. It bears emphasis that Bauer was a just-cause
employee. Had McColgan fired her for a cause unrelated to her political activities (or a protected
characteristic), his decision to do so would be beyond question. And in most prosecutor’s offices,
it is likely that the employees are at-will (as was everyone in McColgan’s office other than Bauer),
terminable for no stated reason at all.
I would reverse the circuit court and remand to the Department of Labor for continuation
of the administrative proceedings.
/s/ Elizabeth L. Gleicher
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