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Application for Leave to Appeal

STATE OF MICHIGAN

IN THE SUPREME COURT

(On Appeal from the Michigan Court of Appeals)

______________________________________________________________________________

THOMAS R. OKRIE,

Plaintiff-Appellant, S. Ct. No.

COA No. 31950

LC No. 13-000093-MK

v Court of Claims

STATE OF MICHIGAN, GOVERNOR

RICK SNYDER, MICHIGAN DEPARTMENT

OF TECHNOLOGY, MANAGEMENT

AND BUDGET, OFFICE OF

RETIREMENT SERVICES,

STATE EMPLOYEES RETIREMENT

SYSTEM, MICHIGAN PUBLIC

SCHOOL EMPLOYEES RETIREMENT

SYSTEM, and MICHIGAN DEPARTMENT

OF TREASURY,

Defendants-Appellees.

______________________________________________________________________

Gary P. Supanich (P45547)

LAW OFFICE OF GARY P. SUPANICH

Attorney for Plaintiff-Appellant

117 N. First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-6561

www.michigan-appeal-attorney.com

Patrick M. Fitzgerald (P69964)

Joshua Booth (P53947)

Margaret Nelson (P30342)

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

State Operations Division

Attorneys for Defendants-Appellees

P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

_____________________________________________________________________

PLAINTIFF-APPELLANT'S APPLICATION FOR LEAVE TO APPEAL

TABLE OF CONTENTS

TABLE OF AUTHORITIES.. i

STATEMENT OF ORDER APPEALED AND RELIEF SOUGHT.. viii

STATEMENT OF QUESTION FOR REVIEW... xiii

STATEMENT OF THE FACTS............................................................................................... 1

I...... Background Facts. 1

A. . The Constitution of 1835................................................................................................ 1

B. . The Constitution of 1850................................................................................................ 2

C. . The Constitution of 1908................................................................................................ 2

D. . The Constitution of 1963................................................................................................ 3

1. The Constitutional Conventional of 1961-62............................................................... 8

2. The Address to the People ............................................................................................... 9

3. An Analysis of the Proposed Constitution ................................................................. 12

4. The Ratification of the Constitution............................................................................ 14

E. The Court of Claims........................................................................................................ 14

II. Procedural Facts. 16

ARGUMENT.. 22

I...... 2013 PA 164 ("THE ACT") VIOLATES THE SEPARATION-OF-POWERS PROVISION UNDER CONST 1963, ART 3, § 2, BY TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS AND ORDERING THIS COURT TO APPOINT FOUR ELECTED JUDGES OF THE COURT OF APPEALS TO SERVE SIMULTAENOUSLY AS UNELECTED JUDGES OF THE COURT OF CLAIMS FOR TWO-YEAR RENEWABLE TERMS.. 22

A..... Standard of Appellate Review.. 22

B..... Legal Discussion.. 24

1. The legislature does not have constitutional authority under Art VI, § 26 to transfer the Court of Claims to the Court of Appeals or to order this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges on the Court of Claims..................................................................................... 28

2. By transferring the Court of Claims to the Court of Appeals and ordering this Court to appoint four elected judges of the Court of Appeals to serve simultaneously as unelected judges of the Court of Claims for two-year renewable terms of appointment, the legislature interfered with this Court's superintending control over the courts under 1963 Const, art VI, § 4............................................ 30

3. By ordering this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges of the Court of Claims for two-year, renewable terms of appointment, the Act violates the Michigan Constitution because this Court does not have the power of appointment under 1963 Const, art VI, § 27. 31

4. Combining the Court of Claims with the Court of Appeals by statute alters the constitutional character of the Court of Appeals as an intermediate appellate court in violation of Article VI, § 1 of the Michigan Constitution....................... 33

5. The Act violates 1963 Const, art VI, § 8, which requires that Court of Appeals' judges be elected by district and sit in divisions of not fewer than three judges. 39

II. THE ACT VIOLATES THE DUE PROCESS CLAUSES UNDER CONST, AM XIV, AND CONST 1963, ART 1, § 17, BY DEPRIVING PLAINTIFF OF HIS RIGHT TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER... 40

A..... Standard of Appellate Review.. 41

B..... Legal Discussion.. 42

III. GIVING IMMEDIATE EFFECT TO SB 652 VIOLATES 1963 CONST, ART IV, § 27 BECAUSE THE BILL FAILED TO OBTAIN TWO-THIRDS VOTE OF THE HOUSE OF REPRESENTATIVES... 47

CONCLUSION AND RELIEF.. 50

TABLE OF AUTHORITIES

Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311 (1977).............. 25

Aetna Life Ins v Lavoie, 475 US 813 (1986). ....................................................................... 41

Attorney General, ex rel, Cook v O'Neill, 280 Mich 649 (1937).......................................... 26

Buback v Governor, 380 Mich 209 (1968)................................................................ 33, 35, 36

Calder v Bull, 3 US (3 Dall) 386 (1798)........................................................................ 42 n 17

Caperton v A T Massey Coal Co, 566 US 868 (2009)............................................. 41, 42, 46

City of Pontiac Retired Employees Ass'n v Schimmel, 726 F3d 767 (CA6 2013), rehearing en banc granted and vacated by 2013 U.S. App. LEXIS 22856 (CA6, Nov. 8, 2013).. 49

City of Pontiac Retired Employees Ass'n v Schimmel, 751 F3d 427 (CA6 2014).. 49 n 20

Civil Service Commission v Auditor General, 302 Mich 673 (1942)................................ 27

County of Wayne v Hancock, 471 Mich 445 (2004)....................................................... 23, 24

Dr. Bonham's Case, 8 Co Rep 107a, 11a, 77 Eng Rep 638 (1610),.......................... 42 n 17

Evans v US Rubber Co, 379 Mich 457 (1967)...................................................................... 38

Finlayson v West Bloomfield Township, 320 Mich 350 (1948)......................................... 19

Frey v Dep't of Mgmt & Budget, 429 Mich 315 (1987)....................................................... 47

Giannotta v Governor, 71 Mich App 15 (1976)..................................................................... 38

Gray v Clerk of Common Pleas, 366 Mich 588 (1962)......................................................... 27

Hammel v Speaker of House of Representatives, 297 Mich App 641 (2012), lv den 493 Mich 973 (2013)................................................................................................................... 49, 50

Heath v Circuit Judge for Kent County, 37 Mich 372 (1877)........................................... 34

Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich App 604 (2004)........................................................................................................................................................ 41

In re Adams Est, 257 Mich App 230 (2003). ....................................................................... 41

In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1 (1968). 34 n 11, 40 n 16

In re Brant's Estate, 269 Mich 201 (1934)............................................................................ 34

In re Brewster Street Housing Site, 291 Mich 313 (1939).................................................... 2

In re Brock, 442 Mich 101 (1993)............................................................................................ 41

In re Districting for Court of Appeals, 372 Mich 227 (1964)....................................... 22, 39

In re Manufacturer's Freight Forwarding Co, 294 Mich 57 (1940).......................... 34, 44

In re Murchison, 349 US 133 (1955)......................................................................... 41, 42, 46

In re 1976 PA 267, 400 Mich 660 (1977)............................................................................... 25

Judicial Attorneys Ass'n v State of Michigan, 459 Mich 291 (1998)............................... 27

Kates v Reading, 254 Mich 158 (1931) ................................................................................. 10

Lapeer County Clerk v Lapeer Circuit Judges, 465 Mich 559 (2002).................... 37 n 14

Lassiter v Dep't of Social Services of Durham Co, 452 US 184 (1981) ........................... 41

Lim v Dep't of Transportation, 167 Mich App 751 (1988).................................................. 28

Littsey v Bd. of Governors of Wayne State University, 108 Mich App 406 (1981)........ 12

McAvoy v H B Serman Co, 401 Mich 419 (1977)................................................................... 8

Makowski v Governor, 495 Mich 465 (2014)......................................................................... 22

Marbury v Madison, 5 US 137 (1803).................................................................................... 22

Michigan Civil Rights Com v Clark, 390 Mich 717 (1973)................................................ 27

Midland Cogeneration Venture Limited Partnership v State of Michigan, 489 Mich 83 (2011)........................................................................................................................................ 22

Mistretta v United States, 488 US 361 (1989)........................................................ 25 n 6, 41

Mooney v Unemployment Compensation Com, 336 Mich 344 (1953).............................. 20

Morrison v Olson, 487 US 654 (1988)................................................................................ 9 n 3

Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187 (1902).................... 2

Parkwood Ltd Dividend Hous Ass'n v State Hous Dev Auth, 468 Mich 763 (2003)..... 12

People ex rel Wexford County Prosecuting Attorney v Kearney, 345 Mich 680 (1956).. 26, 27

People v Tyrer, 385 Mich 484 (1971)...................................................................................... 37

Petition of Crawford, 311 Mich 70 (1945)............................................................................. 20

St Joseph Township v Berrien County Board of Supervisors, 363 Mich 295 (1961).... 19

Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367 (2003).............................. 24

Soap & Detergent Assn v Natural Resources Comm, 415 Mich 728 (1982)................... 22

State Bar of Michigan v Galloway, 124 Mich App 271 (1983), aff'd 422 Mich 188 (1985)....................................................................................................................................................... 27

Streeter v Paton, 7 Mich 341.................................................................................................. 1, 2

Swift v Wayne Circuit Judges, 64 Mich 479 (1887)............................................................ 13

Taylor v Auditor General, 360 Mich 146 (1960),........................................................... 12, 19

Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980...................... 17

Township of Dearborn v Dearborn Township Clerk, 334 Mich 673 (1952).................... 27

Wayne County Chief Executive v Governor, 230 Mich App 258 (1998)........................... 19

Withrow v Larkin, 421 US 35 (1975)........................................................................ 41, 42, 46

Viculin v Department of Civil Service, 386 Mich 375 (1971) ............................................ 38

Constitutional Provisions

Const 1835, art VI, § 1................................................................................................................ 1

Const 1835, art III, § 1.............................................................................................................. 25

Const 1850, art VI, § 1.............................................................................................................. 24

Const 1850, art III, § 1.............................................................................................................. 24

Const 1850, art III, § 2................................................................................................................ 2

Const 1908, art VII, § 1............................................................................................................... 3

Const 1908, art IV, § 1.............................................................................................................. 24

Const 1908, art IV, § 2.............................................................................................................. 24

Const 1963, art I, §17......................................................................................... viii, xiii, 40, 41

Const 1963, art III, § 2....................................................................................... viii, xiii, 24, 25

Const 1963, art IV, § 27..................................................................................... xiii, xiii, 47, 50

Const 1963, art VI............................................................................................................. passim

Const 1963, art VI, § 1...................................................................................................... passim

Const 1963, art VI, § 4................................................................................................. viii, xi, 30

Const 1963, art VI, § 8...................................................................................................... viii, 39

Const 1963, art VI, § 10.................................................................................................... viii, 34

Const 1963, art VI, § 15............................................................................................. viii, 35, 38

Const 1963, art VI, § 23.................................................................................................... viii, 31

Const 1963, art VI, § 26.............................................................................................. viii, s8, 29

Const 1963, art VI, § 27.................................................................................................... viii, 31

Const 1963, art XII............................................................................................................ viii, 32

US Const, AM XIV,..................................................................................................... xiii, 40, 41

Statutes

MCL 15.182................................................................................................................................. 40

MCL 168.409 et seq................................................................................................................... 39

MCL 600.308.............................................................................................................................. 37

MCL 600.310..................................................................................................................... 37 n 14

MCL 600.6404(1)....................................................................................................................... 15

Court Rules

MCR 2.116(C)(8)........................................................................................................................ 16

MCR 2.116(C)(10)......................................................................................................... 16, 17, 18

MCR 2.116(I)(1)................................................................................................................... 17, 18

MCR 7.301(A)(2)....................................................................................................................... viii

MCR 7.302(B)(1).......................................................................................................... viii, xii, 50

MCR 7.302(B)(2).......................................................................................................... viii, xii, 50

MCR 7.302(B)(3).......................................................................................................... viii, xii, 50

MCR 7.302(B)(5).......................................................................................................... viii, xii, 50

MCR 7.302(C)(2)(a).................................................................................................................. viii

MCR 7.203................................................................................................................................... 37

Other Authority

Address to the People (1962)................................................................................................ 9-12

American Bar Association, An Independent Judiciary (July 4, 1997)................... 25, n 7

Boies, Judicial Independence and the Rule of Law, 22 Wash U J L & Poly 57 (2006) 26, n 7

Carl, Michigan's Four Constitutions, 1 (Legislative Service Bureau, Research Brief Series No. 13, 1994)..................................................................................................................... 1

Caughey, The Court of Claims, 20 Mich B J 26 (1941)...................................................... 14

Citizens Advisory Committee, The Judicial Department (September 1961).................. 4

Citizens Research Council, A Comparative Analysis of the Michigan Constitution, Report No. 208 (October 1961)................................................................................................................ 3

Citizens Research Council, A Digest of the Proposed Constitution (Report No. 213) (1962).......................................................................................................................................... 8, 9

Citizens Research Council, An Analysis of the Proposed Constitution (No. 2) (December 17, 1962)....................................................................................................................................... 12

Citizens Research Council, An Analysis of the Proposed Constitution (No. 6) (December 28, 1962)....................................................................................................................................... 13

Citizens Research Council, The Proposed Constitution: A Comparison with the Present Constitution (Report No. 212) (June & August 1962) ............................................... 32 n 9

Coffin, On Appeal: Courts, Lawyering and Judging (1994)..................................... 45 n 18

Convention Comment on Const 1963, art 1, § 6.................................................................... 6

Danhof, Speaking Out: Shaping the Judiciary: A Framer Traces the Constitutional Origins of Selecting Michigan's Supreme Court Justices, 80 Mich Bar J 15 (May 2001),.............................................................................................................................................. 39 n 15

Hamilton, The Federalist, No. 78 (McLean ed. 1788)................................................. 22 n 5,

Harmon, A Matter of Right: A History of the Michigan Court of Appeals (2002). 37 n 13

Joiner, The Judicial System of Michigan, 38 U Det L J 505 (1963)............................ 6, 15

Kauper, The State Constitution: Its Nature and Purpose, Con-Con Research Paper No. 2, Memorandum No. 202, Citizens Research Council (October 1961,................... 5, 36 n 12

10 Michigan Law Practice 2d Courts § 41, Chapter 3 ................................................ 33, 34

1939 PA 135......................................................................................................................... 14, 15

1961 PA 236................................................................................................................................ 15

Orth, Due Process of Law: A Brief History (2003)....................................................... 42 n 17

Orth, Judicial Selection - A View from Outside, 56 Wayne L Rev 715 (2010) 32 n 10, 42 n 17

Report to the Michigan Legislature: Special Commission to Review ARTICLE VI, THE JUDICIAL ARTICLE of the Constitution of Michigan (1972)................................. 29 n 8

Sedler, The Selection of Judges in Michigan: The Constitutional Perspective, 56 Wayne L Rev 667 (2010).............................................................................................................................. 1

SB 652.................................................................................................................................. passim

2011 PA 38.................................................................................................................................. 16

2013 House Journal 1756-1758..................................................................................... 48 n 19

2013 PA 164........................................................................................................................ passim

STATEMENT OF ORDER APPEALED FROM AND RELIEF SOUGHT

Plaintiff-Appellant Thomas R. Okrie appeals from the published opinion of the Court of Appeals (Beckering, PJ, and Hoekstra and Fort-Hood, JJ), denying his Petition challenging the constitutionality of 2013 PA 164 ("the Act") moving the Court of Claims to the Court of Appeals. (EX. 1). Pursuant to MCR 7.301(A)(2) and 7.302(C)(2)(a), Plaintiff respectfully requests that this Court grant his Application for Leave to Appeal because the Court of Appeals' decision involves a substantial question as to the Act's constitutionality under MCR 7.302(B)(1); an issue of significant public interest involving an action against the state, its agencies, subdivisions and an officer of the state under MCR 7.302(B)(2); a jurisprudentially significant question of the highest order under MCR 7.302(B)(3); and a decision that is clearly erroneous and will cause material injustice under MCR 7.302(B)(5). At issue are the following constitutional provisions of the 1963 Michigan Constitution: Article I, § 17; Article III, § 2; Article IV, § 27; Article VI, § 1; Article VI, § 4; Article VI, § 8; Article VI, § 9; Article VI, § 10; Article VI, § 15; Article VI, § 23; Article VI, § 26; Article VI, § 27; and Article XII.

The questions posed in this Application are fundamental to the rule of law in a constitutional democracy under a republican form of government in Michigan. At the heart of this Application is the foundational concept of "One Court of Justice" expressed in the provisions of Article VI of the 1963 Michigan Constitution. As plainly stated in Article VI, § 1:

The judicial power of the state is vested exclusively in one court of justice, which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

Given the plain meaning of this provision, it is apparent that the Constitution vests the judicial power in "One Court of Justice," which "shall be divided" into a tiered, multi-leveled structure of five different kinds of courts, including the constitutionally-created Court of Appeals as an intermediate appellate court and statutory courts of limited jurisdiction, such as the Court of Claims. Indeed, the phrase "shall be divided" is quite literally the opposite of "may be combined."

It is Plaintiff's thesis that the Constitution does not allow the legislature to redesign by statute the constitutional architecture of our unified court system. Yet, by transferring the Court of Claims to the Court of Appeals, the Act fundamentally alters the constitutionally-defined jurisdictional character of the Court of Appeals as an intermediate appellate court, eroding the clear constitutional divisions of judicial power as established by the structure of the "One Court of Justice" system in violation of Article VI, § 1. In other words, the constitutionally-defined jurisdictional character of the Court of Appeals is a structural feature of the architecture of our unified "One Court of Justice" system in Michigan. While the Constitution authorized the legislature to implement the Court of Appeals' appellate jurisdiction, it did not authorize the legislature to increase or expand upon that appellate jurisdiction to include the jurisdiction of a legislatively-created court of limited jurisdiction. Stated differently, the Constitution did not create the Court of Appeals as an empty vessel, allowing the legislature to pour whatever jurisdictional content into it. Rather, the Constitution only allowed the legislature to fill in the details of the Court of Appeals' jurisdictional character by statute (i.e., "provide by law).

In developing the overarching theme of legislature redesign of our constitutionally-mandated judicial structure, the present Application sets forth multiple arguments. At bottom, the Application rests upon the foundational principle that the Michigan Constitution is the paramount expression of Michigan law, whose terms cannot be modified except in accordance with the provisions themselves of Article XII of the Michigan Constitution. Specifically, Plaintiff claims that the Act is violative of the separation-of-powers provision under the state constitution and the due process clauses under the federal and state constitutions. The notion that the Michigan Legislature is not free to alter, through legislation, institutions created and defined by the 1963 Michigan Constitution is hardly novel. Under the separation-of-powers provision, no branch of governmental may encroach upon or interfere with the powers of another.

For that reason, under the clear and precise terms of Article VI, § 26, the legislature had no constitutional authority to move the Court of Claims to the Court of Appeals. Indeed, since the 1850 Constitution, the people of the State of Michigan have increasingly limited the legislature's power over the court system. However, by enacting 2013 PA 164 into law, the legislature circumvented the express limitations imposed upon it by the 1963 Michigan Constitution. Consequently, by moving the Court of Claims to the Court of Appeals, the legislature has impermissibly modified the constitutional scheme requiring Court of Claims cases (against the State of Michigan) to be decided either by a circuit court judge sitting on the Ingham Circuit Court (pursuant to the 1978 statute) or by a circuit court judge in the county in which the case arose by the filing of a suit by a plaintiff residing in that county. If the legislature wished to divest the circuit court judges of the Ingham Circuit Court of having any special role in deciding Court of Claims cases against the State of Michigan, it was free to modify or rescind the 1978 statutory enactment. But there is no authority under the Michigan Constitution for the legislature to transfer the Court of Claims to the Court of Appeals.

Moreover, the legislature had no constitutional authority to order this Court to appoint four elected judges of the Court of Appeals to sit simultaneously as unelected judges of the Court of Claims. For one thing, the Act interferes with this Court's superintending control over all courts in violation of Article VI, § 4. Further, the Act violates Article VI, § 27 because this Court does not have such power of appointment under the Michigan Constitution. Moreover, since the 1850 Constitution, judges are required to be elected officials. Indeed, the 1963 Constitution provides specific eligibility requirements as to the membership of each constitutionally-created division of Michigan's "One Court of Justice" system. Neither the legislature nor this Court, but only the people of the State of Michigan pursuant to the provisions of Article XII of the Constitution, may change that.

Under the separation of powers provision, the legislature also does not have the power to interfere with the constitutionally-defined jurisdiction of the Court of Appeals as an intermediate appellate court by combining it with the Court of Claims. Moreover, under the Michigan Constitution, elected judges on the Court of Appeals cannot hold incompatible offices by serving on a permanent basis as unelected judges of a lower court itself subject to appellate review by their fellow of judges of the Court of Appeals. That is because the Court of Appeals exercises its appellate jurisdiction by reviewing judgments and decrees of inferior courts, including those from the Court of Claims. By combining the jurisdiction of the Court of Claims with that of the Court of Appeals, the Act thus creates the situation whereby the Court of Appeals, acting simultaneously as an appellate court and a lower court subject to appellate review, reviews itself. This constitutes a fundamental violation of Plaintiffs' due process rights under the state and federal constitutions to an objective, deliberative, and reasoned adjudication before an independent and neutral decision-maker.

Finally, it is evident that the Act did not garner two-thirds vote of the members of both the House of Representatives and the Senate to enter into immediate effect. This matter is hardly "moot," for it is "capable of repetition, yet evading review," and harm is likely to recur unless addressed here.

For these reasons, and others set forth in what follows, Plaintiff requests that this Court grant this Application under MCR 7.302(B)(1), (2), (3) and (5) in order to reverse the Court of Appeals' decision and declare the Act as unconstitutional.

STATEMENT OF THE QUESTIONS FOR REVIEW

I. DOES 2013 PA 164 ("THE ACT") VIOLATE THE SEPARATION-OF-POWERS PROVISION UNDER CONST 1963, ART 3, § 2, BY TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS AND BY ORDERING THIS COURT TO APPOINT FOUR ELECTED JUDGES OF THE COURT OF APPEALS TO SERVE SIMULTAENOUSLY AS UNELECTED JUDGES OF THE COURT OF CLAIMS FOR TWO-YEAR RENEWABLE TERMS?

II. DOES THE ACT VIOLATE THE DUE PROCESS CLAUSES UNDER CONST, AM XIV, AND CONST 1963, ART 1, § 17, BY DEPRIVING PLAINTIFF OF HIS RIGHT TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER?

III. DID GIVING IMMEDIATE EFFECT TO SB 652 VIOLATE 1963 CONST, ART IV, § 27, BECAUSE THE BILL FAILED TO OBTAIN TWO-THIRDS VOTE OF THE HOUSE OF REPRESENTATIVES?



STATEMENT OF FACTS

I. Background Facts

In the course of history, the people of the State of Michigan have adopted four Constitutions - in 1835, 1850, 1908 and 1963 - and rejected two others in 1868 and 1874. See Carl, Michigan's Four Constitutions, 1 (Legislative Service Bureau, Research Brief Series No. 13, 1994).

A. The Constitution of 1835

The first constitution was adopted while Michigan was still a territory. Specifically, Article VI, § 1 of the 1835 Constitution provides:

The judicial power shall be vested in one supreme court, and in such other courts as the legislature may from time to time establish.

In the pre-statehood 1835 Constitution, the justices of this Court were appointed by the governor with the consent of the Senate, while all other judges were elected. Sedler, The Selection of Judges in Michigan: The Constitutional Perspective, 56 Wayne L Rev 667 (2010). As this Court explained in Streeter v Paton, 7 Mich 341, 349 (1859):

By courts, as the word is used in the [1850] constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.

Under [the 1835] constitution, the legislature had unlimited power to create inferior courts. In the exercise of this power the legislature, at the commencement of the state government, created a court of chancery, and circuit courts with powers, except in chancery, analogous to our present circuit courts. These, with the Supreme Court, probate courts, and justices' courts, established by the constitution, were the only courts at the commencement of the state government. . . .

B. The Constitution of 1850

A little more than a decade later, there was popular support for a new constitution based upon the principles of Jacksonian democracy whose key notions involved the election of public officials in Michigan, including all judges, and limitations of the power of the legislature. Significant changes were thus made to Article VI, § 1 in the 1850 Constitution. In Streeter, supra at 346, this Court noted:

Our present constitution was not the formation of a new government, but the continuation of a government formed under a previous constitution, whose supposed or real defects it was intended to correct; and in construing it we are bound to look to the distribution of judicial power under the old constitution, and to discover, if we can, the evil, if any, arising from that distribution, and intended to be corrected by the new constitution.

As explained in Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187, 193-194 (1902):

The people were dissatisfied with the courts organized by the legislature, and, in the adoption of the new Constitution, made an important change by proving that:

The judicial power shall be vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities. (Emphasis added.)

Thus the unlimited power to create courts, given by the Constitution of 1835, was taken away by the new Constitution and the legislature was limited to the creation of municipal courts of civil and criminal jurisdiction. The reason for this important change in the organization of the courts is stated in Streeter v. Paton, 7 Mich 341.

C. The Constitution of 1908

One-half century later, the 1908 Constitution retained the constitutional status of the Supreme Court, circuit courts, probate courts and justices of the peace, once again limiting the power of the legislature to establish inferior courts of civil and criminal jurisdiction only. Specifically, the 1908 Const, art 7, § 1 provided:

The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.

As explained in A Comparative Analysis of the Michigan Constitution, Citizens Research Council of Michigan, Report No. 208, October 1961, Articles I-XVII, Chapter VII Judicial Department, p 1:

The constitution of 1908 dropped the provision on municipal courts and authorized the legislature to establish by general law other courts of civil and criminal jurisdiction. According to the "Address to the People," the two-thirds vote was designed to guard against the creation of unnecessary courts.

D. The Constitution of 1963

By the early 1960s, there was a growing movement calling for a constitutional convention to address the profound changes that had occurred in Michigan since the adoption of the 1908 Constitution. The circumstances surrounding the adoption of the new constitution and the purposes sought to be accomplished were addressed in many contemporaneous analyses before and after the Constitutional Convention of 1961-62, which submitted the proposed constitution to the voters in a ratification election on April 1, 1963.[1] Integral to the 1963 Constitution was the introduction of the novel concept of "One Court of Justice," which divided the court system into different levels of judicial administration with correspondingly distinct jurisdictional attributes.

As explained in the Citizens' Advisory Committee (CAC) Report, The Judicial Department, which was prepared for Governor John B. Swainson in September 1961, the proposed new judicial article (Article VII) for the Judicial Department "would add an intermediate Court of Appeals to our Judicial structure" and "lay the groundwork for a unified Court system," and that "[t]here is, under the present Constitution and statutes, a very diversified Court structure." (CAC Report, The Judicial Department, p 1). As for the jurisdiction of the Court of Appeals, the CAC Report stated that the proposed Article VII, § 9 would provide the following.

The Court of Appeals shall have no original jurisdiction, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the State and it may be authorized by rules of the Supreme Court to issue prerogative writs either as original jurisdiction or as necessary and appropriate to its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall by rule prescribe. Such rules prescribe authority for the Court of Appeals to review and revise sentences in criminal cases. (Emphasis added.)

The Comment provides:

The proposed draft assumes that the Court of Appeals shall be the final court of appellate jurisdiction in all cases except those which the Supreme Court chooses to review. It also assumes that the Supreme Court may grant jurisdiction to the Court of Appeals to review directly decisions of administrative agencies in the State. It also assumes that the Supreme Court can and will authorize the Court of Appeals to issue prerogative writs, either as original jurisdictions or as necessary for tis appellate jurisdiction. It leaves to the Supreme Court the power to prescribe the scope of the appellate jurisdiction. This is consistent with the earlier section which theoretically gives the Supreme Court power to indicate where appeals shall lie from each Court of original jurisdiction. (CRC Report, The Judicial Department, p 13).

Before the Constitutional Convention was convened, the changes proposed in the Judicial Chapter were discussed by Professor Paul G. Kauper of the University of Michigan Law School in The State Constitution: Its Nature and Purpose, Con-Con Research Paper No. 2, Memorandum No. 202, Citizens Research Council (CRC) issued in October 1961, where he noted in pertinent part:

Here the important questions relate to the organization of the judicial department; the structure of the court system; . . . and the general authority of the Michigan Supreme Court in respect to such matters as rule making and the supervision of the lower courts. A primary consideration that affects a number of these questions is to assure as far as practicable by constitutional means the independence of the judiciary. An important problem requiring attention is whether the judicial system (the types of courts and their respective jurisdictions) shall be spelled out or whether the constitution shall outline the general structure and vest power in the legislature to fill in the details. [Id. at 18] (Emphasis added.)

In the Conclusion, Professor Kauper remarks:

The constitutional convention of 1961 will not be starting from scratch. The state of Michigan has an extended constitutional history and tradition that began with the adoption of the first constitution in 1835. Any revised constitution must keep faith with the adoption of the first constitution in 1835. Any revised constitution must keep faith with the past and with what has been determined by experience to be the enduring values of a government resting on the consent of the people . . . [Id. at 25].

The contours of the Judicial Department in the proposed constitution - an integrated One Court of Justice - were carefully examined by the University of Michigan Law School under the supervision of Dean Allen F. Smith in A Comparative Analysis of the Michigan Constitution, which was also issued by the CRC in October 1961. As noted in the Comment to the Analysis:

Three separate problems are posed by this section. The first has to do with the question of the unification of the court system; the second, with the need for and creation of a court of appeals; and the third with the place in the judicial system for courts of limited jurisdiction such as justices of the peace.

Integration of Courts: The Model State Judiciary Article of the Section of Judicial Administration of the American Bar Association suggests this provision:

§ 1. The Judicial Power.

The judicial power of the state shall be vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the district court, and one trial court of limited jurisdiction known as the magistrate's court.

Such a provision would achieve full unification and avoid many questions concerning the technicalities of jurisdiction of various separate courts.

* * *

An alternative method of achieving substantial unification would be to provide in the constitution only for the supreme court, a court of appeals (if one is to be created), and the general trial court (circuit court). An additional provision could permit the legislature to establish such other courts as it deemed necessary. Thus, it may be felt that our present system of having separate probate courts, separate municipal courts in some cities, justice courts, recorder's court in Detroit, etc. presents too complicated a structure to be handled at the constitutional level, and that the problem should be handled at the legislative level under general constitutional authority.

Intermediate Court of Appeals. The question of establishing an intermediate court of appeals is an important one. The convention will have to decide both the question of need and the question of structure. Thirteen states today have such a court, and these states are those of heavy population and having large urban centers such New York, Ohio, Indiana, California and Illinois. Michigan is, to this extent, as exception to the pattern.

Professor Joiner [The Judicial System of Michigan, 38 U Det L J 505 (1963)] has commented on this question:

During the past several years four separate and distinct facts point to the need for re-examination of the appellate judicial structure. . . .

The work of the Michigan Supreme Court is as heavy as that of any other supreme court in a state of its size. Michigan is the only state of the heavily populated states that does not have an intermediate court of appeals. In 1959, a study was made which recommended and documented the need for an intermediate court of appeals as the means of providing a sound system of judicial administration at the appellate level. Alternatives were suggested and discussed but the only long-range solution to the problem faced by Michigan was for an intermediate court of appeals. If it were to be provided, all appeals should go from the circuit court to the intermediate court of appeals. All appeals from intermediate court of appeals to the Supreme Court would be by leave. This would bring appellate justice closer to the citizens of Michigan for the immediate court would sit at various places throughout the state, would act more speedily and probably on many more interlocutory matters. This would also provide a method whereby the function of law-making by the judiciary would be supervised effectively at the highest level. The Supreme Court could concentrate on those cases in which guidance is needed in the development of the law of the state or in which conflicts exist between the various courts at the intermediate level or trial level.

The Model State Judiciary Article contains this provision:

§ 3 The Court of Appeals.

The court of appeals shall consist of as many divisions as the supreme court shall determine to be necessary. Each division of the court of appeals shall consist of three judges. The court of appeals shall have no original jurisdiction, except that it may be authorized by rules of the supreme court to review directly decisions of administrative agencies of the state and it may be authorized by rules of the supreme court to issue all writs necessary or appropriate in aid of its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction under such terms and conditions as the supreme court shall specify by rules which shall, however, provide that a defendant shall have an absolute right to one appeal in all criminal cases and which may include the authority to review and revise sentences in criminal cases.

Courts of Limits [sic] Jurisdiction. Reference has already been made to the possible unification of these courts, either in the constitution or by the legislature. Specific comment on the justices of the peace is found later under Section 15, and on probate courts under Section 13. [A Comparative Analysis of the Michigan Constitution, Citizens Research Council of Michigan, Report No. 208, October 1961, Volumes I & II, Articles I-XVII, Chapter VII Judicial Department, p 2) (Emphasis added.)]

1. The Constitutional Convention of 1961-62

The 144 delegates to the Constitutional Convention met in Lansing on October 3, 1961 to consider proposals for the revised Constitution and concluded their work on May 11, 1962. The committee report from the 1961-62 Constitutional Convention indicated that the separation-of-powers provision was based upon Montesquieu's political theories whose basic concept was stated as follows:

Desirous of protecting a free people, [the delegates'] idea was that if, somehow, the powers of government could be divided, it could not grow so large as to enslave them. [1 Official Record, Constitutional Convention 1961 at 601.]

Subsequent to the Constitutional Convention, the CRC issued two publications, The Proposed Constitution: A Comparison with the Present Constitution (Report No. 212) in June 1962 and a revised report in August 1962, as well as another publication, A Digest of the Proposed Constitution (Report No. 213). In the Comment about Article VI, § 1, A Digest of the Proposed Constitution issued in June 1962, the CRC notes:

This provision gives recognition to the concept of a unified court system by vesting the judicial power in "one court of justice" divided into the supreme court, the court of appeals, the circuit court, the probate court and "other courts of limited jurisdiction" established by a two-thirds vote of the legislature. The court of appeals is new and justice [of the peace] courts have been deprived of constitutional status. (see Sec. 26 below). [Id. at 51-52.]

In the Comment about Article VI, § 8, the CRC notes in pertinent part:

This provision specifies that the proposed new intermediate court of appeals shall have nine judges initially which number may be increased by law. . . . Supreme court rules may prescribe that the appeals court may sit in divisions of not less than three judges, and the "times and places" of the courts' terms. [Id. at 55.]

As for Article VI, § 10, the Comment notes:

The court of appeals' jurisdiction shall be provided by law - its practice and procedure by supreme court rule. [Id. at 55.]

Regarding Article VI, § 23, the Comment provides:

This provision abolishes the governor's present power of appointment to fill judicial vacancies. The supreme court "may authorize" a retired judge temporarily to "perform judicial duties" when a vacancy occurs but only until a successor is elected and qualified. The vacancy shall be filled at a "general or special election as provided by law" for which the temporary judge shall be ineligible. [Id. at 60-61.]

For Article VI, § 26, the Comment provides in pertinent part:

Within [five years after the effective date of the proposed constitution], a court or courts of limited jurisdiction shall be established by law with powers and jurisdiction as defined by law. Subject to constitutional limitations, all of the other details relative to the court or courts of limited jurisdiction shall be provided by law. The powers and jurisdiction of statutory courts existing when the constitution becomes effective shall be retained by them except as provided by law until these courts are abolished by law. [Id. at 61-62.]

For Article VI, § 27, the Comment provides:

This is an expanded and more general version of the present provision. No power of appointment to public office, is to be exercised by the supreme, appeals, or circuit courts or any of their judges except as provided in the constitution. (See Secs. 7, 14, and 23 of this Article). [Id. at 62.]

2. The Address to the People

On August 1, 1962, the delegates to the Constitutional Convention of 1961-62 issued a report to the people of Michigan about the most significant changes being presented in the proposed constitution. As the Preface to the Address of the People recognized, one of the major points of the Convention was "a desire to strengthen, each in its proper sphere, the three co-ordinate branches of state government - executive, legislative and judicial." (Preface to Address, p 3). In particular, the Preface observed:

THE JUDICIAL BRANCH

The concept and philosophy of a unified state court system is the chief result of changes in this part of the Constitution. Other significant changes include:

* * *

New Court of Appeals

An intermediate appeal court of nine elected justices [sic] immediately below the supreme court is established to promote the speed and administration of state justice. (Preface to Address, p 7).

In pertinent part, the Address to the People provides:

Article VI

JUDICIAL BRANCH

Judicial Power

Sec. 1. The judicial power of the state is vested exclusively in one court of justice **** which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court and other courts of limited jurisdiction that the legislature may establish by ** a two-thirds vote of the members elected to and serving in each house.

This is a revision of Sec 1, Article VII of the present constitution. It provides three basic changes in the existing state judicial branch:

1. It creates a "court of justice", incorporating the concept that the state has a single court with several divisions, each devoting its attention to a certain level of judicial administration.

2. It creates an intermediate court of appeals between the circuit courts and the supreme court. Such a court would share part of the present work load of the supreme court and becomes necessary, it is believed, because of a mandate in Article I of this new document which grants an appeal as a matter of right in criminal cases.

* * *

COURT OF APPEALS

Court of appeals; judges; elections

Sec. 8. The court of appeals shall consist initially of nine judges who shall be nominated and elected at non-partisan elections from districts drawn on county lines and as nearly as possible of equal population, as provided by law. The supreme court may prescribe by rule that the court of appeals may sit in divisions and for the terms of court and the times and places thereof. Each such division shall consist of not fewer than three judges. The number of judges comprising the court of appeals may be increased, and the districts from which they are elected may be changed by law.

This is a new section provided for the structure of the newly-created court of appeals. The nine judges of the court are to be nominated and elected from districts on a non-partisan basis in a manner to be determined by the legislature. The supreme court is authorized to prescribe that the court of appeals may sit in divisions of not fewer than three judges at such places as may be designated. . . .

* * *

Court of appeals; jurisdiction.

Sec. 10. The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.

This is a new section providing that jurisdiction of the court of appeals shall be established by the legislature. Practice and procedure are to be provided by rules of the supreme court. (Address, pp 55, 57-58)

The Address to the People also provides in pertinent part:

Certain offices abolished.

Sec. 26. The offices of circuit court commissioner and justice of the peace are abolished at the expiration of five years from the date this constitution becomes effective or may within this period be abolished by law. . . . Within this five-year period, the legislature shall establish a court of courts of limited jurisdiction with powers and jurisdiction defined by law. . . .

Statutory courts in existence at the time this constitution becomes effective shall retain their powers and jurisdiction, except as provided by law, until they are abolished by law.

This is a new section abolishing the offices of circuit court commissioner and justice of the peace five years from the date this constitution becomes effective, unless within this period they are abolished by the legislature. This will give the legislature time in which to re-evaluate the entire system of courts of limited jurisdiction and to develop a lower court structure better adopted to the needs of the people and the ends of justice.

The second paragraph of the section continues in existence the several statutory courts created under the present constitution. Included are Recorder's court and Common Pleas court in Detroit, Superior court in Grand Rapids, municipal courts throughout the state and the Court of Claims. These courts are unchanged by this section, but the legislature has the power to abolish them or transfer their duties elsewhere. (Address, pp 63-64).

The Address to the People further provided:

Prohibition; power of appointment.

Sec. 27. The supreme court, the court of appeals, the circuit court, or any justices or judges thereof, shall not exercise any power of appointment to public office except as provided in this constitution.

This is a revision of the second sentence of Sec. 11, Article VII, of the present constitution and is made applicable to the supreme court and court of appeals as well as circuit courts.

3. An Analysis of the Proposed Constitution

Before the ratification election on April 1, 1963, the CRC issued two publications entitled, An Analysis of the Proposed Constitution, which were "designed to provide the citizens with factual information upon the basis of which he [sic] can intelligently form a judgment on this important public question. In An Analysis of the Proposed Constitution (No. 2) issued on December 17, 1962, the report noted that one of the major changes was that "a new feature guarantees an appeal as a matter of right in all criminal prosecutions." (CRC Analysis, No. 2 , p 1). On December 28, 1962, the CRC also issued An Analysis of the Proposed Constitution (No. 6), wherein it noted the following:

THE JUDICIAL BRANCH

The proposed constitution makes the following major changes with respect to the judicial article:

1. Provisions to effectuate a unified judicial system.

2. Increased judicial and administrative authority for supreme court as head of the state court system.

3. A new court is established - an intermediate court of appeals - subordinate only to the supreme court. (CRC Analysis, No. 6, p 1)

The Analysis specifically observed:

Under the proposed constitution, the state judicial power is "vested exclusively in one court of justice" - divided into the supreme court, the court of appeals, the circuit court (designated as a trial court of general jurisdiction), the probate court, and "courts of limited jurisdiction" which may be established by law for which a two-thirds vote of the legislature is required. . . .

The intermediate court of appeals provided for in the proposed constitution is intended to relieve the supreme court of some of its appellate load and permit the supreme court greater discretion to sift judicial cases and concentrate on those involving more important questions. This and other features intended to increase the supreme court's judicial and administrative supervision of the other courts would emphasize the supreme court's role as head of a unified state judicial system. (CRC Analysis, No. 6, p 2 (Emphasis added.)

The Analysis also stated in pertinent part:

Court of Appeals

The new intermediate court of appeals, inferior only to the supreme court, would have nine judges, but this number could be increased by law.

***

4. The court of appeals' jurisdiction would be prescribed by law.

5. The sessions of the court of appeals and its practice and procedure would be prescribed by the supreme court. . . .

Other State Courts

Three other classes of courts - the circuit and probate courts and courts of limited jurisdiction - are required by the proposed constitution.

* * *

Courts of Limited Jurisdiction

Within five years of the proposed constitution's effective date, the legislature is required to establish a court or courts of limited jurisdiction which will be subordinate to the circuit courts. Their powers and jurisdiction will be prescribed by law. The location of these courts and details relating to their judges are also to be prescribed by law. . . . (CRC Analysis, No. 6, pp 4-5)

4. The Ratification of the Constitution

On April 1, 1963, the voters ratified the proposed constitution, with an effective date of January 1, 1964, creating the Court of Appeals as an intermediate appellate court to share the appellate work load with this Court.

E. The Court of Claims

The Court of Claims came into existence as a legislatively created court of limited jurisdiction pursuant to the Court of Claims Act, 1939 PA 135, which authorized lawsuits against the state and its agencies. As explained by William T. Caughey, then Clerk of the Court of Claims, in his article, The Court of Claims, 20 Mich B J 26 (1941):

Michigan is the third state of the United States to divorce the consideration of claims and demands against the sovereign from the jurisdiction of State elective officials, and place the determination thereof in a judicial body, a court of claims.

Michigan has improved upon the method of determining claims by assigning circuit judges to act as judges of the court of claims. The circuit judges are assigned by the presiding circuit judge. In the other two state courts of claims, the judges thereof are appointed by the governor, with the consent and approval of the legislature.

* * *

Appeals may be taken to the Supreme Court from the court of claims as if the latter court were one of the circuit courts of this State and under the same rules. Costs upon appeal may be allowed to the prevailing party in like amounts and for the same items as in a case at law from a circuit court.

The legislature amended 1939 PA 135 in 1961, reenacting it as 1961 PA 236, to reflect the state's waiver of sovereign immunity from suit and submission to the court's jurisdiction. Before the Constitutional Convention was convened, Professor Joiner noted in The Judicial System of Michigan, 38 U Det L J 505, 520 (1960):

The Court of Claims

It has been true from time immemorial that the sovereign could not be sued in his own courts without his consent. The state, being sovereign, therefore cannot be sued in state courts without its consent. It has, however, given broad consent to be sued, and the Court of Claims has been set up to handle such action.

One or more of the circuit judges is designated by the court administrator to act as judge of the Court of Claims, with no more than one sitting in Lansing. The court has its own set of officers, including a clerk and a stenographer. Claims under $100 are not heard by the court, but by the State Administrative Board. [Footnotes omitted.]

Thus, at the time the 1963 Constitution went into effect on January 1, 1964, the Court of Claims was a pre-existing statutory court of limited jurisdiction, staffed by circuit court judges only, and thus subject to provisions of Article VI, § 26 of the new constitution. Thereafter, in 1978, the Legislature, through MCL 600.6404(1), made the Court of Claims "a function of the 30th judicial circuit." From 1978 until 2013 PA 164 took effect, the Court of Claims was "housed" in the Ingham Circuit Court (the 30th Judicial Circuit) whose central location was regarded as providing a neutral court for litigants, as well as saving the State of Michigan money by alleviating the need for the Attorney General to defend cases in different circuit courts across the state. Cases opened in the Court of Claims were thus assigned to a 30th Judicial Circuit Court judge, or any circuit court judge the State Court Administrator assigned to exercise the jurisdiction of the Court of Claims.

II. The Procedural Facts

Pursuant to the Court of Claims Act in force at the time, Plaintiff Thomas R. Okrie, a retired public school teacher representing other similarly situated state and public school employees, filed a Verified Class Action Complaint against the State of Michigan (Okrie et al. v State of Michigan et al., No. 13-93-MK) with the Court of Claims operating in the Ingham Circuit Court on July 9, 2013. Plaintiff alleged that, under the doctrine of promissory estoppel, the State breached its contract with him by subjecting his state pension to taxation pursuant to 2011 PA 38 after he had made irrevocable retirement and employment termination decisions based upon the State's promise that his pension was exempt from state and local income tax. The case was assigned by blind draw to Ingham Circuit Court Judge Rosemarie Aquilina in her capacity as a judge of the Court of Claims.

On August 9, 2013, the State filed a Motion for Summary Disposition under MCR 2.116(C)(8) and (C)(10), claiming that there was no breach of contract because the Legislature had the exclusive power over taxation, and thus the Office of Retirement Services (ORS) could not enter into a contract binding the State as to a tax-exempt pension. On August 14, 2013, Plaintiff filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(10) and MCR 2.116(I)(1) claiming that there was no genuine issue of material fact that the State breached its contract under the doctrine of promissory estoppel based upon Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980). Plaintiff also filed a Motion for Class Certification, stating this case is suitable for treatment as a class action. Subsequently, on September 26, 2013, Plaintiff filed an Amended Verified Class Action Complaint with the Court of Claims, adding claims for unjust enrichment and breach of employment contract under state law, as well as claims under the state and federal constitutions for violations of the Contract Clause, the Takings Clause, and Substantive and Procedural Due Process Clauses.

On October 9, 2013, Judge Aquilina held a hearing on the parties' Motions for Summary Disposition and Plaintiffs' Motion for Class Certification. Before hearing these motions, Judge Aquilina granted Plaintiff's motion to add the counts in their Amended Verified Class Action Complaint. After hearing argument from counsel, Judge Aquilina stated that her decision would be immediately appealed as it presented difficult legal issues that required diligent analysis, and that she would issue a written opinion before December 4, 2013.

Immediately thereafter, on October 24, 2013, Senate Bill No. 652 was introduced and referred to the Committee on Judiciary, proposing to shift the jurisdiction of the Court of Claims to the Court of Appeals. On October 30, 2013, a substitute bill was reported favorably by the Committee, with a recommendation for immediate effect.[2] After suspending the rules, the Senate passed the bill with immediate effect (26 in favor, 11 opposed, 1 excused) on October 30, 2013.[3] The bill then went to the House of Representatives, which referred it to the Committee on Governmental Operations on October 31, 2013.

The next day, November 1, 2013, Plaintiff filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(10) and MCR 2.116(I)(1) as to the claims added in the Amended Verified Class Action Complaint. The Court of Claims scheduled a hearing on Plaintiff's Motion for Summary Disposition for 9:00 a.m. on Friday, December 13, 2013.

On November 5, 2013, the House Committee on Governmental Operations recommended SB 652 without amendment on November 5, 2013, and the bill immediately went for a public hearing in the House.[4] Despite overwhelming public opposition, SB 652 was passed and given immediate effect, even though it failed to obtain two-thirds of the votes in the House of Representatives as required by the Michigan Constitution (57 votes in favor, 52 votes opposed).

On the same day, November 5, 2013, Judge Aquilina entered an Opinion and Order denying Plaintiff's Motion for Summary Disposition on the breach of contract claim based upon the doctrine of promissory estoppel, granting the State's Motion for Summary Disposition as to this cause of action, and dismissing Plaintiff's Motion for Class Certification "as moot." The following day, November 6, 2013, the State filed another Motion for Summary Disposition as to the claims asserted in Plaintiff's Amended Verified Class Action Complaint.

On November 7, 2013, SB 652 returned to the Senate, where it was enrolled. On November 12, 2013, it was presented to Governor Snyder, who signed it into law on November 13, 2013 as Public Act 164 of 2013, with immediate effect.

On November 14, 2013, the day after the bill was signed, this Court, pursuant to the Act, issued an order appointing four judges of the Court of Appeals Hon. Michael J. Talbot (Court of Appeals District 1); Hon. Pat M. Donofrio (Court of Appeals District 2); Hon. Deborah A. Servitto (Court of Appeals District 2); and Hon. Amy Ronayne Krause (Court of Appeals District 4) to sit on the Court of Claims for terms expiring May 1, 2015. Judge Talbot was appointed chief judge. On November 14, 2013, Judge Talbot, in his capacity as Chief Judge of the Court of Claims, issued Administrative Order 2013-1:

Effective November 12, 2013, the staff of the Thirtieth Circuit of Michigan, who have been deputized by the Clerk of the Court of Claims, are authorized to process all pleadings, documents, and fees; and to enter orders and opinions, on behalf of the Court of Claims for a period of 60 days from the Clerk's Certification of this order, or until further order of this Court.

On November 14, 2013, Judge Talbot as Chief Judge of the Court of Claims also issued an order staying for a period of 30 days "All Matters Pending in the Court of Claims."

Pursuant to the Act, "[t]he court of appeals has exclusive original jurisdiction over any action challenging the validity of section 6404, 6410, 6413 or 6419." See SB No. 652, § 308(4). Because Plaintiff challenged the validity of all these sections referenced in § 308(4), he filed an original action in the Court of Appeals on December 13, 2013. Principally, Plaintiff challenged the constitutionality of the Act transferring the Court of Claims from the 30th Circuit Court to the Court of Appeals; directing the Supreme Court to appoint elected four Court of Appeals' judges to sit simultaneously as unelected judges on the Court of Claims for two-year renewable terms; and giving immediate effect given to the Act. On January 29, 2014, Plaintiff filed a motion for oral argument, which the Court of Appeals (Beckering, PJ, Hoeksta and Fort-Hood, JJ) granted on April 17, 2014. Following oral argument in a special session on July 8, 2014, the Court of Appeals issued an Opinion denying Plaintiff's Petition. (EX. 1). Plaintiff now asks this Court to grant his Application for Leave to Appeal from the decision of the Court of Appeals denying his Petition challenging the constitutionality of 2013 PA 164.

ARGUMENT

I. 2013 PA 164 ("THE ACT") VIOLATES THE SEPARATION-OF-POWERS PROVISION UNDER CONST 1963, ART 3, § 2, BY TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS AND ORDERING THIS COURT TO APPOINT FOUR ELECTED JUDGES OF THE COURT OF APPEALS TO SERVE SIMULTAENOUSLY AS UNELECTED JUDGES OF THE COURT OF CLAIMS FOR TWO-YEAR RENEWABLE TERMS.

A. Standard of Appellate Review

Whether a violation of the separation-of-powers provision under the state constitution or the due process clauses under the federal and state constitutions has occurred is a question of law that is reviewed de novo. Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83, 89 (2011). "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v Madison, 5 US (1 Cranch) 137 (1803). [5] While the legislature and the governor have "the sole and exclusive right to the law-making power in the government of our State," this Court has the "separate duty of constitutional construction as it relates to legislation creating [sic] the court of appeals." In re Districting for Court of Appeals, 372 Mich 227, 228 (1964); 1963 Const, art VI, § 1.

To interpret the constitutional provisions at issue, this Court, as recently reaffirmed in Makowski v Governor, 495 Mich 465, 472 (2014); quoting Soap & Detergent Assn v Natural Resources Comm, 415 Mich 728, 745 (1982), has developed two rules of construction:

First, the interpretation should be "the sense most obvious to the common understanding; the one which reasonable minds, the great mass of the people themselves would give it, in ratifying the proposed 1963 Constitution. Thus, we look to the common understanding of the voters in the 1963 election who ratified the proposed Constitution that was presented to them after the Constitutional Convention of 1961 and 1962.

Second, we consider "the circumstances surrounding the adoption of the constitutional provisions at issue and the purpose sought to be accomplished." To this end, this Court looks to the debates in the Constitutional Convention record and related contemporaneous documents published about the proposed Constitution. While the Constitutional Convention record and the contemporaneous documents about the proposed Constitution are not controlling or determinative, they may be considered to be "illuminating, affording a sense of direction. Id, quoting from House Speaker v Governor, 443 Mich 560, 581 (1993).

Justice Cooley described the rule as follows:

A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. "For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed." Traverse City School District v Attorney General, 384 Mich 390, 405 (1971) (emphasis in original), quoting Cooley's Constitutional Limitations 81.

While the primary goal in interpreting the constitution is to discern the "common understanding" of the voters who ratified it, this generally only entails ascertaining the language's plain meaning; "technical or legal terms of art," however, are to be construed in their "technical, legal sense." County of Wayne v Hancock, 471 Mich 445, 469 (2004), quoting Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 375 (2003). As Justice Cooley explained:

It must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history, and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. . . . The technical sense in these cases is the sense popularly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights. (Hancock, supra, quoting 1 Cooley Constitutional Limitations (8th ed), pp 130-133).

Further, in Hancock, this Court noted:

Justice Cooley recognized, as demonstrated by the passage cited above, that, in ratifying a constitution, the people may understand that certain terms used in that document have a technical meaning within the law. Therefore, the people may ratify a constitution with the understanding that it incorporates legal terms of art - or, in Justice Cooley's terms, words "employed in their technical sense." (Id, citing Cooley, supra at 132).

Interpreting the constitutional provisions at issue in accordance with these two criteria - the common understanding of the electors and the circumstances surrounding the adoption of the 1963 Constitution - this Court should conclude that the Act violates the separation-of-powers provision of the Michigan Constitution by impermissibly transferring the Court of Claims from the 30th Judicial Circuit (Ingham Circuit Court) to the Court of Appeals.

B. Legal Discussion

Each of Michigan's four constitutions has had a separation-of-powers provision. Const 1963, art III, § 2; Const 1908, art IV, §§ 1-2; Const 1850, art III, § 1-2; and Const 1835, art III, § 1. Unlike the United States Constitution, "the Michigan Constitution is not a grant of power to the Legislature . . . but rather, it is a limitation on general legislative power." Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318 (1977). [6] The current version, Const 1963, art 3, § 2, states:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

As such, the Michigan Constitution "divides the powers of government among three branches of government and commits to each branch exclusive exercise of the functions properly belonging to it, except as otherwise provided in the Constitution." In re 1976 PA 267, 400 Mich 660, 662 (1977), citing Const 1963, art 3, § 2. "This separation of powers is designed to preserve the independence of the three branches of government." In re 1976 PA 267, supra at 662.[7]

As this Court noted in Attorney General, ex rel, Cook v O'Neill, 280 Mich 649, 654 (1937), interpreting the 1908 Constitution:

The judiciary is an independent department of the State government, deriving none of its judicial power from either of the other departments. * * * In a general way, the courts possess the entire body of judicial power. The other departments cannot properly assume to exercise any part of this power; it cannot be taken away by a legislative action, nor is the legislature permitted to interfere with the courts in the performance of their duties.

Because judicial power was exclusively entrusted to the judiciary by the Constitution, the other branches of government could not diminish, exercise or interfere with it, absent constitutional authorization. Id; see also People ex rel Wexford County Prosecuting Attorney v Kearney, 345 Mich 680 (1956); Gray v Hakenjos, 366 Mich 588 (1962).

Under the doctrine of the separation of powers, then, judicial power is vested in the courts as a separate entity. Gray v Clerk of Common Pleas, 366 Mich 588, 594-595 (1962). Because the judiciary is an independent department of the State, it derives none of its judicial powers from either the legislative or executive branches, and courts cannot be hampered or limited in the discharge of their functions by either of the other branches of government. Id. Since judicial powers are conferred by the Michigan Constitution, and not by a legislative act, the Michigan Constitution confers upon the judiciary all the authority necessary to exercise its powers as a coordinate branch of government. Id.; see also Judicial Attorneys Association v State of Michigan, 459 Mich 291, 300 (1998), citing Gray, supra. If there is any ambiguity as to the duties imposed upon a judicial officer, "the doubt should be resolved in favor of the traditional separation of governmental powers." Township of Dearborn v Dearborn Township Clerk, 334 Mich 673, 689 (1952), quoting Civil Service Commission v Auditor General, 302 Mich 673, 683 (1942). Further, under the doctrine of the separation of powers, the legislative cannot encroach on or unduly burden or interfere with, the judicial department in the exercise of judicial functions. Thus, courts cannot be hampered or limited in the discharge of their functions by the legislative branch. See Michigan Civil Rights Com v Clark, 390 Mich 717 (1973); State Bar of Michigan v Galloway, 124 Mich App 271 (1983), aff'd 422 Mich 188 (1985); Gray, supra.

1. The legislature does not have constitutional authority under Art VI, § 26 to transfer the Court of Claims to the Court of Appeals or to order this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges on the Court of Claims.

As an initial matter, it is necessary to recognize that the Court of Claims is a statutory court of limited jurisdiction and that at the time that the 1963 Constitution became effective on January 1, 1964, only circuit court judges served as judges on the Court of Claims. See Lim v Dep't of Transportation, 167 Mich App 751, 753 (1988) (noting that the Court of Claims, being a court of legislative creation, has explicit and limited statutory powers). As a result, under Article VI, § 26 of the Michigan Constitution, the legislature does not have constitutional authority to move the Court of Claims to the Court of Appeals or order this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges on the Court of Claims. Specifically, Article VI, § 26 provides:

The offices of circuit court commissioner and justices of the peace are abolished at the expiration of five years from the date this constitution becomes effective or may within this period be abolished by law. Within this five-year period, the legislature shall establish a court or courts of limited jurisdiction with powers and jurisdiction defined by law. The location of such court or courts, and the qualifications, tenure, method of election and salary of the judges of such court or courts, and by what governmental units the judges shall be paid, shall be provided by law, subject to the limitations contained this article.

Statutory courts in existence at the time this constitution becomes effective shall retain their powers and jurisdiction, except as provided by law, until they are abolished by law.

As set forth in the second paragraph of Article VI, § 26, the Court of Claims only retained its then-existing powers and jurisdiction at the time that the 1963 Constitution became effective on January 1, 1964, "except as provided by law, until they are abolished." As stated in the first paragraph of § 26, "[w]ithin this five-year period, the legislature shall establish a court or courts of limited jurisdiction with powers and jurisdiction defined by law." Thus, at the time the 1963 Constitution entered into effect, the legislature only had the choice of retaining the Court of Claims, staffed by elected circuit court judges only, as it then existed, creating a different Court of Claims within five years, or abolishing the Court of Claims; there was no other alternative, short of an amending the 1963 Michigan Constitution in this respect.

Further, the legislature does not have any constitutional authority to order this Court to appoint four elected Court of Appeals' judges to serve as unelected judges on the Court of Claims (except for limited periods or specific assignments). That is because only elected circuit court judges can serve as judges on the Court of Claims. Consequently, the legislature is constitutionally prohibited from ordering this Court to appoint four elected judges of the Court of Appeals to serve simultaneously as unelected judges of the Court of Claims. To transfer the Court of Claims to the Court of Appeals or to order this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges of the Court of Claims requires an amendment to the Michigan Constitution.[8]

2. By transferring the Court of Claims to the Court of Appeals and ordering this Court to appoint four elected judges of the Court of Appeals to serve simultaneously as unelected judges of the Court of Claims for two-year renewable terms of appointment, the legislature interfered with this Court's superintending control over the courts under 1963 Const, art VI, § 4.

The Act also violates the separation-of-powers provision by interfering with this Court's superintending control over all courts, 1963 Const, art VI, § 4, which provides:

The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by the rules of the supreme court. The supreme court shall not have the power to remove a judge.

Under the Michigan Constitution, this Court - not the legislature - is exclusively entrusted with superintending control over all courts, including the Court of Claims. Under the separation-of-powers provision of the Michigan Constitution, the legislature is not authorized to interfere with this Court's superintending control of the courts by transferring the Court of Claims to the Court of Appeals and by ordering this Court to appoint four elected Court of Appeals' judges to sit simultaneously as unelected judges of the Court of Claims. In short, the legislature overstepped its power under the Michigan Constitution by restructuring the Court of Appeals' constitutionally-mandated operations as an intermediate appellate court sharing the appellate work load with this Court and by taking away the operations of the Court of Claims as a function of the Ingham Circuit Court.

3. By ordering this Court to appoint four elected Court of Appeals' judges to serve simultaneously as unelected judges of the Court of Claims for two-year, renewable terms of appointment, the Act violates the Michigan Constitution because this Court does not have such power of appointment under 1963 Const, art VI, § 27.

The Act also violates 1963 Const, art VI, § 27, by directing this Court to exercise a power of appointment to public office, which it does not have under the Michigan Constitution. Specifically, Article 27 provides:

The supreme court, the court of appeals, the circuit court, or any justices or judges thereof, shall not exercise any power of appointment to public office except as provided in this constitution. (Emphasis added.)

In this instance, the only relevant power of appointment afforded this Court is set forth in 1963 Const, art VI, § 23, which provides:

A vacancy shall occur in the office of judge of any court of record or in the district court by death, removal, resignation or vacating of the office, and such vacancy shall be filled by appointment by the governor. The person appointed by governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs, at which election a successor shall be elected for the remainder of the unexpired term. Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law. The supreme court may authorize persons who have been elected and served as judges to perform judicial duties for limited periods or specific assignments. (Emphasis added.)[9]

However, under the Michigan Constitution, this Court's power to designate judges elected to one court to perform judicial duties for limited periods or specific assignments does not encompass the power to appoint elected Court of Appeals' judges to serve simultaneously as unelected judges of the Court of Claims in a permanent capacity as members of the latter court for a fixed two-year, renewable term of office. Pursuant to present version of Article VI, § 23, only the governor has the power of appointing a person to the office of judge of any court of record, with the appointed person required to stand for election. Indeed, ever since the 1850 Constitution, Michigan has required that its judges be elected, not appointed.[10]

It goes without saying that the legislature may not repeal a constitutional provision by statute. To amend the Constitution requires a voter initiative or a constitutional convention under Article XII. In short, because the plain language of the Constitution controls, any doubts about whether the Act may allow this Court to appoint a judge elected to sit on the Court of Appeals to sit at the same time on a permanent basis for a renewable two-year term as an unelected judge of the Court of Claims must be given to the voters of the State of Michigan to decide.

4. Combining the Court of Claims with the Court of Appeals by statute alters the constitutional character of the Court of Appeals as an intermediate appellate court in violation of Article VI, § 1 of the Michigan Constitution.

The text of Article VI, § 1 makes it abundantly clear there is "one court of justice" divided into different courts in a tiered judicial structure to which each court is correspondingly assigned a distinct level of judicial administration. Specifically, Article VI, § 1 provides:

The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

As this Court explained in Buback v Governor, 380 Mich 209, 226 (1968):

For the first time, the judicial article of the 1963 Constitution (article 6, § 1) speaks of the judiciary in terms of one court of justice. That one court of justice is the judicial branch. The courts which make up the one court of justice do not exercise identical or corresponding jurisdiction. Each has its particular level of judicial administration. But since all courts form but one court of justice to which the judicial power has been granted by the Constitution, it seems clear all courts perform solely by the exercise of judicial power. . . . (Emphasis added.)

Vesting judicial power exclusively in "One Court of Justice," the Constitution thus created a unified court system divided into different levels of judicial administration. See 10 Michigan Law Practice 2d Courts § 41, Chapter 3: Creation and Legislative Control, n. 1984, citing Constitutional Comment on Mich Const, art 6, § 1. Thus, unless authorized by the Michigan Constitution, "the legislature cannot abolish, reorganize, divide, or consolidate constitutional courts, nor alter, destroy, increase, or diminish the essentials of the jurisdiction, functions, or judicial powers so conferred upon them." 10 Michigan Law Practice 2d Courts § 41, Chapter 3: Creation and Legislative Control, n 1988 citing In re Manufacturer's Freight Forwarding Co, 294 Mich 57 (1940); In re Brant's Estate, 269 Mich 201 (1934); and Heath v Circuit Judge for Kent County, 37 Mich 372 (1877).

Therefore, the sense most obvious to the common understanding and the circumstances surrounding the adoption of the provisions of Article VI are that the 1963 Constitution created an integrated judicial structure ("one court of justice"). In this multi-tiered system, courts are assigned distinct levels of judicial administration, with the Court of Appeals designated with constitutional status as an intermediate appellate court.[11] As determined by the architecture of the integrated "one court of justice" structure, the 1963 Constitution conferred upon the Court of Appeals its jurisdictional character as an intermediate appellate court, directing the legislature, under Const 1963, art 6, § 10, to implement this constitutionally-defined jurisdictional character with enabling legislation (i.e., "provide by law") and this Court to prescribe the rules and procedure governing the Court of Appeals. Nowhere in the Constitution was the legislature given the authority to alter the constitutionally-defined jurisdictional character of the Court of Appeals as an intermediate appellate court. Simply put, the 1963 Michigan Constitution does not authorize the legislature to expand statutorily the jurisdiction of the Court of Appeals to include that of the Court of Claims, a legislatively-created court of limited jurisdiction, thus restructuring by statute the Court of Appeals' operations in a manner incompatible with its constitutionally-mandated functions as an intermediate appellate court.

This was clearly spelled out by this Court in Buback with reference to the jurisdiction of the probate courts under Article VI, § 15:

The Constitution of 1963 does not define the entire jurisdiction of probate courts. This responsibility is left to the Legislature by article, 6, § 15:

"The jurisdiction, powers and duties of the probate court and of the judges thereof shall be provided by law."

The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words "prescribed by law" and the words "provided by law." Where "provided by law" is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words "prescribed by law." See 2 Official Record, Constitutional Convention of 1961, pp 2673-2674.

The provision of the 1963 Constitution last quoted above placed the responsibility on the legislature to draft the law but did not grant authority for departure from the requirements and proscriptions of the Constitution. It does not have the effect of permitting disregard of the separation of powers article. [380 Mich at 226-227. (emphasis added.]

Buback thus interpreted "provided by law" as constitutionally constraining the legislature's power in implementing the jurisdiction, powers and duties of the probate court and its judges. [12]

The same also holds true here with regard to the legislature's implementation of the jurisdiction of the Court of Appeals, pursuant to the Michigan Constitution. Obviously, the Court of Appeals is called by that name for a reason - to be an intermediate appellate court between the Supreme Court and other inferior courts.[13] As a result of the adoption of the 1963 Michigan Constitution, this Court was no longer "the only appellate court in Michigan," but became "the Court of last resort in a bi-level appellate system." People v Tyrer, 385 Mich 484, 485 (1971). "The principal function of the Court of Appeals is to hear appeals of right from the trial courts of general jurisdiction." Id. Pursuant to MCL 600.308, the Court of Appeals has jurisdiction of appeals, whether by right or upon leave granted, from all final judgments from the circuit courts and other lower courts, such as the Court of Claims. See MCR 7.203.[14] Simply put, the Constitution "permits the Legislature only to prescribe the details of" the Court of Appeals' appellate and original jurisdiction, not to expand its constitutionally-defined jurisdiction as an intermediate appellate court to include the jurisdiction of a legislatively-created court, such as the Court of Claims.

Finally, the architecture of our tiered judicial system under the Michigan Constitution does not allow the legislature to combine the elected office of a Court of Appeals judge with the unelected office of a Court of Claims judge sitting on a legislatively-created court of limited jurisdiction. In this regard, it is instructive to examine 1963 Const, art VI, § 15, which provides in pertinent part:

In each county organized for judicial purposes there shall be a probate court. The legislature may create or alter probate court districts of more than one county if approved in each affected county by a majority of the electors voting on the question. The legislature may provide for the combination of the office of probate judge with any judicial office of limited jurisdiction within a county with supplemental salary as provided by law. . . . (Emphasis added.)

While the Constitution explicitly provides that the legislature may combine the office of a probate judge "with any judicial office of a limited jurisdiction within a county," it notably made no such provision for combining the elected office of a Court of Appeals judge with another (especially unelected) judicial office of a limited jurisdiction. This significant omission implies that the Constitution does not allow the legislature to combine by statute the elected office of a judge on the Court of Appeals with the unelected office of judge on the Court of Claims. See Giannotta v Governor, 71 Mich App 15, 18 (1976) (noting that "the Supreme Court has approved the interpretative method of comparing related provisions of the law in order to reach an understanding of what the drafters actually intended by their use or omission of terms"), citing Viculin v Department of Civil Service, 386 Mich 375, 390-392 (1971) and Evans v US Rubber Co, 379 Mich 457, 460-463 (1967).

5. The Act violates 1963 Const, art VI, § 8, which requires that Court of Appeals' judges be elected by district and sit in divisions of not fewer than three judges.

The 1963 Constitution requires that judges on the Court of Appeals be elected by district and sit in divisions of not fewer than three judges.[15] Specifically, Article VI, § 8 provides:

The court of appeals shall consist initially of nine judges who shall be nominated and elected at non-partisan elections from districts drawn on county lines and as nearly as possible of equal population, as provided by law. The supreme court may prescribe by rule that the court of appeals sit in divisions and for the terms of court and the times and places thereof. Each such division shall consist of not fewer than three judges. The number of judges comprising the court of appeals may be increased, and the districts from which they are elected may be changed by law.

MCL 168.409 et seq. implements this constitutional provision, establishing the eligibility requirements for judge on the intermediate appellate court. See In re Districting for Court of Appeals, supra, 372 Mich at 227 (unanimously concluding that elective districts for judges of Court of Appeals had to consist of a county or counties, and the splitting of a county or counties would be violative of the Constitution and election districts must be as nearly as possible of equal population). Because the 1963 Constitution requires that Court of Appeals' judges sit in divisions of not fewer than three judges, elected judges of the Court of Appeals cannot sit individually as unelected judges on a legislatively-created court, such as the Court of Claims. [16]

Accordingly, constitutional limitations prevent the legislature from ordering this Court to appoint four elected appellate judges of the Court of Appeals to serve simultaneously on a permanent basis for two-year renewable terms as unelected judges of the Court of Claims. Once elected to serve as judges on the Court of Appeals, the Michigan Constitution does not permit them to sit on a permanent basis as judges on another court, and thereby hold incompatible offices in violation of the Incompatible Offices Act, MCL 15.182. In short, appellate judging with other appellate judges is the sole office under the 1963 Michigan Constitution of elected judges on the Court of Appeals. As appellate judges, Court of Appeals' judges sit on three-member panels hearing and deciding cases collectively as a body, and not individually as a trial judge.

II. THE ACT VIOLATES THE DUE PROCESS CLAUSES UNDER CONST, AM XIV, AND CONST 1963, ART 1, § 17, BY DEPRIVING PLAINTIFF OF HIS' RIGHT TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER.

A. Standard of Appellate Review

Both the state and federal constitutions preclude the government from depriving a person of life, liberty, or property without due process of law. US Const, Ams V, XIV; Const 1963, art 1, sec 17; Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich App 604, 605 (2004). The essence of due process is to ensure fundamental fairness and a commitment to objective, deliberative, and reasoned adjudication before a neutral decision-maker. Lassiter v Dep't of Social Services of Durham Co, 452 US 18, 24 (1981). In re Brock, 442 Mich 101, 111 (1993); In re Adams Est, 257 Mich App 230, 233-234 (2003).

"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 US 133, 136 (1955). Indeed, the "legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship." Mistretta, supra, 488 US at 407. To safeguard the right to a fair trial, the United States Constitution requires judicial recusal in cases where "the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable." Withrow v Larkin, 421 US 35, 47 (1975). "The Due Process Clause has been implemented by objective standards that do not require proof of actual bias." Caperton v A T Massey Coal Co, 566 US 868, 883 (2009), citing Aetna Life Ins v Lavoie, 475 US 813, 825 (1986). "The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Caperton, supra, 566 US at 883 (2009).

Thus, the question is "whether 'under a realistic appraisal of psychological tendencies and human weakness,' the [judge's] interest 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to adequately implemented." Id. at 883-84 (quoting Withrow, supra, 421 US at 47). Due process mandates a "stringent rule" for judicial conduct, requiring recusal even of judges "who would do their very best to weigh the scales of justice equally" if the risk of bias is too high. Muchison, supra, 349 US at 136. The risk of unfairness "cannot be defined with precision" because "[c]ircumstances and relationships must be considered." Id. "Financial conflicts of interest are not the only relevant conflicts for judicial bias purposes." See Caperton, supra, 556 US at 878 (explaining that judicial bias doctrine encompasses "a more general concept of interests that tempt adjudicators to disregard neutrality").

B. Legal Discussion

It is axiomatic that the law cannot make a man or woman a judge in his own case.[17] By extension, as a matter of the due process of law, an appellate court cannot review itself. Yet, by transferring the Court of Claims to the Court of Appeals and ordering this Court to appoint four elected judges of the Court of Appeals to sit simultaneously as unelected judges of the Court of Claims for two-year renewable terms, the Act does precisely that, putting elected judges of the Court of Appeals in the position of effectively reviewing four of their fellow judges sitting in the capacity as unelected judges on the Court of Claims. This interferes with the judicial independence of the Court of Appeals to perform its constitutionally mandated duties as an intermediate appellate court, which the Michigan Constitution established in the unified "One Court of Justice" structure as separate and apart from the inferior courts whose orders and judgments are reviewed. Consequently, the elimination of the constitutional distinction between a higher court reviewing the orders and judgments of an inferior court places the Court of Appeals in the constitutionally untenable position of reviewing itself. In short, there is no constitutional authority under the state and federal constitutions to justify such an anomalous situation.

As set forth in Article VI of the Michigan Constitution, the Court of Appeals was created as an intermediate appellate court between this Court and inferior courts, with its principal function involving appellate review of lower court orders and judgments. As such, the architecture of the Michigan Constitution structurally mandates "vertical appeals" from lower courts to a higher court, not "horizontal or lateral appeals" from one court to itself. (EX. 1 - COA Opinion, p 16, n 25). The nature of such vertical appeals is discussed by this Court in In re Manufacturer's Freight Forwarding Co, 294 Mich at 69 as follows:

"We cannot lose sight of the fact that appeals only lie from one court to another -- not from an executive officer to a court. . . . There must be a competent judicial tribunal to pass upon a case before an appeal can be taken to a higher court." Ex parte Allen, 26 Ark. 9.

* * *

"We have no idea of an appeal, except from one court to another." Ex parte Logan Branch Bank, 1 Ohio St. 432.

* * *

"Under the laws of this State, we are only authorized to review the record and proceedings of inferior courts, officers, or tribunals acting in a judicial capacity, and exercising judicial functions." Esmeralda County v. Third Judicial District Court, 18 Nev. 438 (5 Pac. 64).

"An appeal in law is the removal of a matter or cause from an inferior to a superior court for the purpose of reviewing, correcting, or reversing the judgment or sentence of the inferior tribunal." Leach v. Blackely, 34 Vt. 134.

"The word 'appeal' in its technical and appropriate sense, means the taking of a suit or cause and its final determination from one court or jurisdiction after final judgment to another." Barlow v. Daniels & Co., 25 W. Va. 512, 521.

"The term 'appeal' was unknown to the common law. It belonged wholly to courts of chancery, and means in its technical and appropriate sense the removal of a suit, and its final determination, from an inferior court, after final judgment in that court, to a superior court, and placing the case in the latter court, to be again tried de novo upon its merits, just as though it had never been tried in the inferior court." Fouse v. Vandervort, 30 W. Va. 327 (4 S.E. 298). [Id. at 69-70].

Notwithstanding the structural feature of Article VI of the Michigan Constitution requiring "vertical appeals" to Michigan appellate courts, the Act simply ignores this constitutional requirement in defiance of the Due Process Clauses under the state and federal constitutions. Indeed, combining the Court of Claims with the Court of Appeals undermines any viable distinction between the Court of Appeals, as the higher tribunal reviewing lower court decisions, and the Court of Claims, as the inferior tribunal subject to appellate review by a higher court. It creates the unprecedented situation of having the Court of Appeals act simultaneously as an intermediate appellate court and a trial court of limited jurisdiction whose orders, judgments and decrees are subject to appellate review by the Court of Appeals. Thus, instead of the Court of Appeals fulfilling its constitutionally-mandated role as an intermediate appellate court independently reviewing the orders and judgments of inferior courts in "vertical appeals," it is essentially reviewing itself (horizontally or laterally) in violation of Plaintiff's due process rights under both the state and federal constitutions to an objective, deliberative and reasoned adjudication before a neutral decision-maker.

In addition, it cannot be gainsaid that the Act places Court of Appeals' judges themselves in the untenable position of sitting in appellate judgment of four of their peers and colleagues in their capacity as Court of Claims judges. [18] Here, the risk of unfairness is simply too high to be constitutionally tolerable, even if there is no question that the Court of Appeals judges "would do their very best to weigh the scales of justice equally." Withrow, supra at 47; Muchison, supra at 136. As the United States Supreme Court made clear in Caperton, the question is "not whether the judge is actually, subjectively biased, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." 566 US at 883 (Emphasis added.). Placing Court of Appeals judges in the thoroughly undesirable position of sitting in appellate review of their own fellow judges acting as Court of Claims' judges unnecessarily raises the specter of an unconstitutional potential for bias. In this regard, it is important to underscore that "[f]inancial conflicts of interest are not the only relevant conflicts for judicial purposes." Id. at 878.

Besides eroding the constitutional separation between the Court of Appeals as an intermediate appellate court and the lower courts subject to appellate review in the Court of Appeals, the Act also predetermines the judges in those cases against the State that may come before this Court in the event of an appeal. For by ordering this Court to designate the four elected Court of Appeals' judges to serve also as unelected judges of the Court of Claims, the Act calls into question the existence of an objective, deliberative and reasoned adjudication before a neutral appellate decision-maker from the start. This is particularly true of the cases, such as this one, which were pending in the Court of Claims before randomly assigned judges of the Ingham Circuit Court when SB 652, after a whirlwind process, was enacted into law and given immediate effect. Indeed, this accelerated process, lacking any deliberation befitting a constitutional democracy in a limited republic, smacks of forum shopping by Governor Snyder, a party defendant in this and other lawsuits against the State, seeking to reassign pending cases to judges potentially more favorable to him. For this and the foregoing reasons, this Court should find that the Act violates the Due Process Clauses under the state and federal constitutions.

III. GIVING IMMEDIATE EFFECT TO SB 652 VIOLATES 1963 MICH CONST, ART IV, § 27 BECAUSE IT FAILED TO OBTAIN TWO-THIRDS VOTE OF THE HOUSE OF REPRESENTATIVES.

Generally, the Michigan Constitution makes bills effective 90 days after the end of the legislative session in which they are passed. Specifically, Article IV, § 27 of the Michigan Constitution provides:

No Act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by two-thirds vote of the members elected to and serving in each house."

Thus, the general rule is subject to the immediate effect exception that permits the Legislature to "give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house." Const 1963, art IV, § 27 (emphasis added.) In Frey v Dep't of Mgmt & Budget, 429 Mich 315, 333 (1987), this Court discussed the framers' intent for this constitutional provision as follows:

Several delegates expressed concern that granting the Legislature the power to give immediate effect to any law would endanger the referendum because it would not give the people time to gather signatures for petitions to prevent the law from going into effect. Also, there was the danger that statutes would be passed without giving people adequate time to become acquainted with the statutes and adjust to them before they went into effect. To reduce this danger, the framers decided to maintain the requirement that no act passed by the Legislature could take immediate effect unless passed by a two-thirds vote of the elected members of each house. (Emphasis added.)

Here, the Michigan Legislature has ignored the constitutional requirement an act to take immediate effect. Specifically, the vote in the House of Representatives (57 votes in favor, 52 opposed) failed to satisfy the two-thirds vote requirement for an act to take immediate effect.[19] In short, the legislature brazenly violated the Michigan Constitution's express limitation on its power to give laws immediate effect.

Notwithstanding, the Court of Appeals ruled that it was bound by the prior published decision in Hammel v Speaker of House of Representatives, 297 Mich App 641, 651 (2012), lv den 493 Mich 973 (2013), which held that "[t]he constitutional provisions at issue permit the manner in which they are applied to be determined by adoption of the rules of House." (EX. 1 - COA Opinion, p 18). The specious reasoning in Hammel was clearly exposed in recent decision of the Sixth Circuit panel in City of Pontiac Retired Employees Ass'n v Schimmel, 726 F3d 767 (CA6 2013), rehearing en banc granted and vacated by 2013 U.S. App. LEXIS 22856 (6th Cir. Nov. 8, 2013).[20] Specifically, Schimmel concerned whether the Emergency Manager Bill, 2012 PA 436, was lawfully given immediate effect because it was passed with less a two-thirds majority immediately after the citizens of the State of Michigan had just rejected a previous incarnation of the law in a democratically-initiated referendum. Judge Gwin rejected the illogic of Himmel as follows:

This reasoning makes little sense. The Michigan Constitution expressly limits the Legislature's power to give laws immediate effect. Yet, the Michigan Court of Appeals says that the Michigan Legislature has the power to decide whether that constitutional limitation applies? Alternatively, the court of appeals also made the illogic finding that the plaintiffs failed to show irreparable harm because the "plaintiffs' ability to vote and the effectiveness of their vote have not been impaired." [726 F3d at 775].

As a result, Judge Gwin would have remanded the case to the district court to "consider whether the Michigan Supreme Court would overrule Hammel." Id. As Judge Gwin noted:

There is good reason to believe it would. The Michigan constitutional provision seems obviously directed at restricting its Legislature's ability to give bills immediate effect unless a real two-thirds of the elected members in each house agree. And the court of appeals's belief that house members do not need to vote on immediate effect if they have had a chance to vote on the underlying legislation turns Michigan Constitution, article IV, § 27 on its head. [Id.]

Relying upon the same reasoning, Plaintiff now asks this Court to overrule Hammel and find that the vote on the SB 652 in the House of Representatives failed to satisfy the two-thirds vote requirement for an act to take immediate effect under 1963 Const, art IV, § 27.

CONCLUSION AND RELIEF

Based upon the foregoing, this Court should GRANT Plaintiff-Appellant's Thomas R. Okrie's Application for Leave to Appeal under 7.302(B)(1), (2), (3) and (B)(5) and place this case on calendar call to allow for full briefing and argument in order to reverse the Court of Appeals' decision on August 19, 2014 denying Plaintiff's Petition challenging the constitutionality of 2013 PA 164, find that the Act is unconstitutional, and remand this case to the jurisdiction of Judge Aquilina of the 30th Judicial Circuit for further proceedings in that forum. Plaintiff also requests an award of attorney fees and costs, and any relief that this Court deems necessary as a matter of law and equity.

Respectfully Submitted,

By: ____________________________

Gary P. Supanich (P45547)

Attorney for Plaintiff-Appellant Thomas Okrie

117 N. First Street, Suite 111

Ann Arbor, MI 48104

Dated: September 19, 2014 (734) 276-6561


[1] Many of these documents are available online from the website for the Bentley Historical Library at the University of Michigan, http://bentley.umich.edu/research/guides/politics/conventions/php.

[2] The Floor Summary and the Summary as passed by the Senate prepared by the Senate Fiscal Agency Bill Analysis completed on October 30, 2013 notes that "the Court of Appeals currently has excess capacity that could absorb the Court of Claims caseload without adding judgeships."

[3] Exercising her constitutional right of protest under Const 1963, art 4, § 18, Senator Whitmer protested against the whirlwind passage of SB 652, stating in part:

By moving the jurisdiction of our state's Court of Claims from the Ingham County Circuit Court, where it stands now, to a Court of Appeals handpicked by the Supreme Court, you are unnecessarily interfering with judicial oversight and trying to shift power from judges elected by the people to judges appointed by partisans. [Journal of the Senate (October 30, 2013), p 1690]

[4] According to the State Bar of Michigan:

The swift passage of this legislation did not allow the State Bar to advocate a position before the Legislature under the provisions of Michigan Supreme Court Administrative Order 2004-01, which restricts formal action on legislation until 14 days after notice has been posted on the State Bar website. (The 14-day waiting period typically is not a problem; the State Bar's normal timeframe for the adoption of policy position encourages effective notice to members, widespread input, and careful review and consideration of all viewpoints. . . .)

Although the State Bar could not take a position on SB 652, we were able to serve as a resource for timely, reliable information about the bill to interested members, sections, and local bars. Importantly, despite the bill's swift enactment, the legal community as a whole has been actively engaged in providing input. Two sections of the State Bar-the Appellate Practice Section and the Negligence Section-were able to adopt positions under their own bylaws in time to offer testimony before the House committee considering the bill. Their positions, and the subsequent position of the Elder Law section, can be accessed here. [www.michbar.org/eBlasts/advisory11-15-13.cfm]

For the record, it should be noted that these three sections of the State Bar opposed the legislation. In particular, the Appellate Practice Section, of which the undersigned attorney is a member, explained its opposing position as follows:

SB 652 would change the makeup of the Court of claims so it is made up of 4 Court of Appeals judges. However, the bill does not change or address MCL 600.308, which provides that final judgments of the Court of Claims are appealable of right to the Court of Appeals, thus, appeals from the Court of Appeals judges sitting as Court of Claims judges will be taken to the Court of Appeals, which is unprecedented. It is questionable how this will proceed, whether this comports with due process, how the appellate judges will be selected for this task, etc. The Section also believes that having four judges of the COA having to serve as trial court judges will also delay the processing of appeals. [Id.]

[5] See The Federalist, No. 78, at (McLean ed. 1788) (Hamilton) (noting that courts are entrusted with judicial power to void legislation in order to preserve the power of the people, declared in the Constitution, by keeping the Legislature within its assigned limits).

[6] In Mistretta v United States, 488 US 361, 382 (1989), the Supreme Court observed that the constitutional separation of powers doctrine is concerned about "the encroachment or aggrandizement of one branch at the expense of the other." It is also concerned about disruptions of the "proper balance" between the branches that prevent one branch from "accomplishing its constitutionally assigned functions." Morrison v Olson, 487 US 654, 695 (1988).

[7] As explained in An Independent Judiciary, p iii (July 4, 1997), the Report of the Commission on Separation of Powers and Judicial Independence under the auspices of the American Bar Association:

Judicial independence includes the independence of an individual judge as well as that of the judiciary as a branch of government. Individual independence (otherwise known as decisional independence) is both substantive, in that it allows judges to perform the judicial function subject to no authority but the law, and personal, in the sense that it guarantees judges job tenure, adequate compensation and security.

Branch independence (otherwise known as institutional independence) involves matters affecting the operation of the judiciary as a separate branch of government. The impartial administration of a justice system requires that the judiciary be given a significant degree of independence from other branches of government.

As observed by David Boies, Judicial Independence and the Rule of Law, 22 Wash U J L & Poly 57, 58 (2006), "[j]udicial independence and judicial supremacy work together in an attempt to guarantee that the rule of law will not be eroded by the political pressures in existence at any particular point in time." Boies gives two reasons for entrusting the judiciary with this power. "First, it is very hard to draw the line between what is necessary to secure a democratically elected legislature and what issues involve other constitutional concerns. . . . The second reason . . . is that we, as a society, believe that part of the rule of law is not only majority rule but also the preservation of certain minority rights." Id. at 61-62. As Boies explains:

The ability of judges to interpret the law free from the political pressures of the moment is dependent on the interpretation of the role that they bring to the bench, the extent to which (and the time schedule on which) they can be replaced, and the nature of the attacks that follow unpopular decisions. The genius of the American judicial system's implementation of the rule of law is that it has coupled the principle of judicial supremacy with the principle of judicial independence; the latter enables judges to fulfill the function that the former gives them. [Id. at 62.]

[8] Cognizant of the constitutional limitations imposed upon the legislatively-created courts of limited jurisdiction, just such an amendment was proposed to the Michigan Legislature in April 1972, but not adopted. Specifically, the Report to the Michigan Legislature: Special Commission to Review ARTICLE VI, THE JUDICIAL ARTICLE of the Constitution of Michigan, proposed the following:

Sec. 1. The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, ONE COURT OF CLAIMS AND ADMINISTRATIVE APPEALS, one trial court of general jurisdiction known as the circuit court, **** ONE TRIAL COURT OF LIMITED JURISDICTION KNOWN AS THE DISTRICT COURT, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

The COMMENT provides the following:

This section is a revision of Sec. 1 of the present Article VI.

1. It eliminates a constitutional establishment of a Probate Court.

2. It creates a new Court of Administrative Appeals and Claims

3. It recognizes the District Court, established by statute, and gives it constitutional status.

4. It continues with the concept that the state has "one Court of Justice" with several divisions each devoting its attention to a certain level of judicial administration.

[9] As noted in The Proposed Constitution: A Comparison with the Present Constitution, Citizens Research Council of Michigan, Report No. 212, June, 1962, constitutional exceptions to the prohibition of appointment power are provided at 1963 Const, art VI, § 7, 14 and 23.

[10] Orth, Judicial Selection - A View from Outside, 56 Wayne L Rev 715, 718-719, n. 18-21 (2010)(noting that "[e]lection of American judges by the people - defined as the qualified voters - began in 1777," and that "[b]y the outbreak of the Civil War, more than half the states had elective judiciaries.")

[11] See In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1, 19 (1968) (J. Adams's opinion for denial of jurisdiction) ("It is beyond question that the purpose of the creation of the Court of Appeals was to create an intermediate appellate court to provide speedy, adequate, and final review of the majority of appeals of cases from the trial courts of this State.").

[12] It is instructive to pay heed to Professor Kauper's insightful remarks in The State Constitution: Its Nature and Purpose, supra, p 12:

The Constitution as a Fundamental and Enduring Instrument of Government

The questions of what specifically should be dealt with in a state constitution and the purposes to which a state constitution should be directed are questions which depend for their answer on the choice of a basic approach to constitution making. Most students of the subject agree that the constitution should serve the purpose of a fundamental organic document establishing, defining and limiting the basic organs of power, stating general principles and declaring the rights of the people. This points to the conclusion that the constitution should not be an elaborate document: that it should be relatively compact and economical in its general arrangement and draftsmanship; that details should be avoided; and that matters appropriate for legislation should not be incorporated into the organic document; that it should be relatively compact and economical in its general arrangement and draftsmanship; that details should be avoided; and that matters appropriate for legislation should not be incorporated into the organic document. Chief Justice Marshall stated this idea in classic form in the course of his famous opinion in McCulloch v. Maryland:

A Constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of a prolixity of a legal code, and could be scarcely embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. . . In considering this question, then, we must never forget that it is a Constitution we are expounding. [Wheaton, 316, 407-408 (1819)].

[13] See Harmon, A Matter of Right: A History of the Michigan Court of Appeals (2002).

[14] In addition to the appellate jurisdiction granted by MCL 600.308, the Court of Appeals is authorized to hear certain original actions, pursuant to MCL 600.310, which provides:

The court of appeals has original jurisdiction to issue prerogative and remedial writs or orders as provided by rules of the supreme court, and has authority to issue any writs, directives and mandates that it judges necessary and expedient to effectuate its determination of cases brought before it.

See Lapeer County Clerk v Lapeer Circuit Judges, 465 Mich 559, 566-567 (2002) ("In several court rules, we have exercised that statutory authority to enable the Court of Appeals to exercise supervisory control jurisdiction.")

[15] See Danhof, Speaking Out: Shaping the Judiciary: A Framer Traces the Constitutional Origins of Selecting Michigan's Supreme Court Justices, 80 Mich Bar J 15, 18 (May 2001), where Judge Danhof explained that the election to the Court of Appeals as judge by district was an essential compromise of the Constitutional Convention.

[16] See In re Application of Governor, supra, 381 Mich at 12, denying jurisdiction, with which three other justices concurred, Justice O'Hara noted:

The judicial article (art. 6, § 8) also provides that "the supreme court may prescribe by rule that the court of appeals sit in divisions" and that "Each such division shall consist of not fewer than three judges." We construe this section of the judicial article as some indication that judges of the appellate Court were not intended to sit individually as one-man grand jurors.

[17] As John Orth noted in Due Process of Law: A Brief History, p 9 (2003): "The question can be used to test the procedural fairness of any legal system by highlighting one of its most essential features, whether cases are decided by an independent decision maker, one with no personal stake in the outcome and no fear of retribution from the powers that be if the case is decided one way or the other." This principle derives from Dr. Bonham's Case, 8 Co Rep 107a, 11a, 77 Eng Rep 638, 652 (1610), where Judge Coke held that "someone ought not to be a judge in his or her own cause, for it is unfair for someone to be a judge in his own affairs." Id. at 19. In Calder v Bull, 3 US (3 Dall) 386, 388 (1798), Supreme Court Justice Samuel Chase, in dicta, enshrined the fundamental principle that "a law that makes a man a Judge is his own cause" as unconstitutional under the Due Process Clause of the Fourteenth Amendment to the US Constitution." Orth, Judicial Selection - A View from Outside, 56 Wayne L Rev 715, 724 (2010), citing Due Process of Law, supra at 33-44.

[18] Judge Frank M. Coffin, the former Chief Judge of the United States Court of Appeals for the First Circuit, offers important insights and observations about the essential role of collegiality amongst intermediate appellate court judges in On Appeal: Courts, Lawyering and Judging (1994):

"Collegiality"' descends from the Latin word collegium, meaning a body of colleagues or coworkers. The term fits appellate courts with exactness, for the judges on such a court are a small band of brothers and sisters. . . .

I can think of no other contemporary institution that brings to every decision this degree of intimate, equal, permanent, independent, and single-minded collegiality . . .

Collegiality at its best has several qualities. One is intimacy - intimacy beyond affection, resulting in deep if selective knowledge of one another. Nobody knows one's societal values, biases, and thought ways better than a colleague. This intimacy is fed from the spring of our common enterprise and manifests itself in an abiding concern for each other and, above all, for the court . . . [Id. at 213-214].

[19] The Court of Appeals found that "[t]he House Journal reflects that the two-thirds total was reached" based upon the entry the "Rep. Stamas moved that the bill be given immediate effect" and "The motion prevailed, 2/3 of the members serving voting therefor." (EX. 1 - COA Opinion, p 18, quoting from 2013 House Journal 1756-1758). As dissenting members of the House present at the time attested, the House Journal entry is false, for there was no separate vote on the motion to give the bill immediate effect. Indeed, if the Court of Appeals had consulted the entire House Journal entry on this matter, the panel would have read the protests made to the giving immediate effect to the bill. In particular, Rep. Segal declared: "Finally, I have a great deal of concern over the impact of applying immediate effect to this bill by gaveling through the vote without a proper count." 2013 House Journal at 1759 (Emphasis added). So did Rep. Roberts, who stated: "The process in which this legislation was passed goes against our Michigan Constitution and a two-thirds vote, which immediate effect requires was not properly accounted for." Id. (Emphasis added). Likewise, Rep. Slavens remarked: "Finally, I have a great deal of concern over the impact of applying immediate effect to this bill by gaveling through the vote without a proper count." Id. (Emphasis added). Rep. Hovey-Wright said the same. Id. at 1959-1760.

[20] Even though the full Sixth Circuit vacated the panel's decision in Schimmel, the undersigned attorney adopts herein the reasoning of the panel's majority opinion. It should be noted that the full Sixth Circuit vacated the District Court's decision denying injunctive relief and remanded for further proceedings, but did not address whether the Emergency Manager Bill should have been given immediate effect. City of Pontiac Retired Employees Ass'n v Schimmel, 751 F3d 427 (CA6 2014).

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