One Court of Justice

Michigan’s Public Act 53, enacted in 2012, prohibits public-school employers from providing payroll deductions to collect union membership dues from public-school employees.  Plaintiffs, a number of unions and union members, challenged the Act facially, alleging that it violates their federal constitutional rights.  In Bailey v. Callaghan, the Sixth Circuit, in a published 2-1 opinion, held that plaintiffs have no chance of success on their claims under the First Amendment and Equal Protection Clause, and reversed the district court’s preliminary injunction barring enforcement of Public Act 53.  The majority determined that plaintiffs’ First Amendment claim fails because the Act does not restrict speech and does not discriminate based upon viewpoint.  Applying a rational-basis review, the majority concluded that plaintiffs’ equal-protection claim also fails because it determined that there is a conceivable legitimate governmental interest in support of the classification barring public-school employers, but not other public employers, from using their resources to collect union dues.

The dissent concluded that plaintiffs’ First Amendment claim is likely to succeed because though Public Act 53 is viewpoint-neutral on its face, it is viewpoint-discriminatory in fact.  Examining the neutral justifications for Act 53 offered by the State of Michigan – saving money, promoting union accountability, and providing a “check on union power” – the dissent determined that Act 53 is impermissibly motivated by Michigan’s desire to suppress the school unions’ viewpoint.

In AFT Michigan v Michigan and several consolidated cases, public-school employees and their representative organizations challenged the constitutionality of MCL 38.1343.  MCL 38.1343 requires public schools to pay 3% of each employee’s salary to the state, to be placed into accounts used to fund public-school-employee healthcare retirement benefits.  The Court of Appeals held that MCL 38.1343 is unconstitutional, violating the contracts clauses, the takings clauses, and due-process clauses of the federal and state constitutions. Read more »

In 2004, the Pontiac School District privatized services that had been provided by occupational therapists and physical therapists employed by the school district.  The Pontiac Education Association claimed that the school district could not unilaterally act, because the issue was subject to collective bargaining.  The school district rejected the claim and laid off the therapists.  Under the Public Employment Relations Act, MCL 423.215(3)(f), collective bargaining is not allowed with respect to a decision to outsource “noninstructional support services.”  In Pontiac School Dist. v. Pontiac Educ. Ass’n, No. 300555, the Michigan Court of Appeals upheld the decision of the Michigan Employment Relations Commission, which concluded that occupational and physical therapists provide instructional support services under the Act.  Accordingly, the school district’s decision to contract the services out to a third party should have been the subject of collective bargaining.  Chief Judge Murphy authored the opinion, in which Judge Owens joined.  Judge Jansen dissented, because she concluded that occupational and physical therapists provide noninstructional support services.

In Herrick District Library v. Library of Michigan, No. 300393, the Court of Appeals chastised the Department of Education (“DOE”) for attempting to force local libraries to offer equal services to citizens outside their jurisdiction, without authority from the Legislature and contrary Michigan’s constitution.  In so ruling, the Court rejected broad statements in Michigan Supreme Court dicta that suggest agencies always have implied rule-making power.  Instead, a more limited standard applied:  the power of an agency must be conferred by clear and unmistakable statutory language or “necessary to the due and efficient exercise of the powers expressly granted.” Read more »

In Davis v. Chatman, No. 299021, the Court of Appeals affirmed the trial court’s decision to invalidate Clifford Chatman’s victory in the Highland Park school board election and declare Robert Davis the election winner. Read more »

On January 8, 2010, the Michigan Supreme Court peremptorily resolved two cases, denied leave to appeal in three cases, and ordered oral argument on the application in one case.  People v. Smelley is addressed in a separate post.  The remaining cases in which the Court took substantive action are addressed below.

In the apparently inaptly titled action Friend v. Friend, the Michigan Supreme Court ordered a MOA to address, among other issues, whether the Court should adopt the fugitive-disentitlement doctrine to dismiss the defendant mother’s appeal because she has failed to comply with counseling and parenting-time provisions in the parties’ divorce judgment and then refused to appear for hearing in contempt of a court order.  The Court invited the Family Law Section of the State Bar of Michigan and the Michigan Chapter of the American Academy of Matrimonial Lawyers to submit amicus briefs.  Read more »

The Michigan Supreme Court will hear oral argument in Adair v. State, Nos. 137424 and 137453 tomorrow.  In Adair, school districts from across the state sued the State of Michigan because the State imposed increased reporting requirements on the school districts without providing the additional funding necessary to pay for the increased requirements.  The case was tried as an original action in the Court of Appeals. The Court granted leave to address two issues: (1) whether the prohibition of unfunded mandates set forth in the Michigan Constitution of 1963, in Article IX, Section 29, the “POUM Clause” or the Headlee Amendment, requires the school districts to prove specific costs, either through the reallocation of funds or out-of-pocket expenses; and (2) whether the school districts are entitled to recover the costs incurred in maintaining this suit under Const. 1963, art. IX, § 32.  This is the third time that Adair has come before the Court.  The Court’s order granting leave may be found here.  The Michigan Court of Appeals’ opinion may be found here. Read more »

On Friday, May 8, 2009, the Michigan Supreme Court denied leave to appeal in six cases, but granted oral argument on the application for leave in four cases discussed below.  The Court also granted reconsideration in Stone v. R.W. LaPine, Inc. to remand the workers’ compensation case to the Board of Magistrates for recalculation of the plaintiff’s average weekly wage.

The Court granted MOAs in the following cases:

Michigan Education Association v. Secretary of State, No. 137451:  The Court ordered the parties to address whether a school district can collect the portion of teachers’ union dues attributable to the Michigan Education Association’s Political Action Committee (“MEA PAC”) as a payroll deduction without violating the  Michigan Campaign Finance Act.  The Court of Appeals, in a 2-1 decision, concluded that school districts cannot lawfully collect the MEA PAC’s funds even if the MEA PAC pre-paid for the service.  The Court of Appeals’ decision is here.

Bezeau v. Palace Sports & Entertainment, Inc., No. 137500:  The Court asked the parties to address whether “the jurisdictional standard established at MCL § 418.845, as interpreted . . . in Karaczweski v. Farbman Stein Co., 478 Mich 28 (2007), should be applied.”  The Court invited the Worker’s Compensation Section of the Michigan Bar to submit an amicus brief.

Allen v. Bloomfield Hills School District, No. 137607:  The Court ordered the parties to address whether post-traumatic stress disorder may qualify as a bodily injury that to avoid application of government immunity under MCL § 691.1405.  The Court invited the Michigan Defense Trial Counsel and the Michigan Association for Justice to submit amicus briefs.

Myers v. Muffler Man Supply Co., No. 137608:  The Court ordered the parties to address whether the defendant’s negligence was the proximate cause of the plaintiff’s injury.

On April 3, 2009, the Michigan Supreme Court denied leave to appeal in five cases, denied rehearing in one case, and ordered the Kalkaska County Trial Court Family Division to appoint counsel to represent the respondent to respond to the Michigan Department of Human Services’ application for leave to appeal In re Hall (order here), entered miscellaneous orders in three cases and granted leave to appeal in two cases including Adair v. State of Michigan which has been before the Court in 2002 and 2005.  These five orders are discussed after the jump.  The Court also granted reconsideration in Sazima v. Shepherd Bar & Restaurant which is discussed in a separate post. Read more »

On February 24, 2009, the Michigan Court of Appeals in Bandeen v. Public School Employees Retirement Board, No. 279363, affirmed the lower court’s finding that a substitute teacher, who refused further assignments five months before giving birth with no evidence of being medically unable to teach, did not leave service for purposes of maternity and was not a “public service employee” on leave of absence, making her ineligible to purchase public service credits during any part of her continuous twelve-year absence. Read more »