university that is employment was terminated in violation of due process because it was not given a hearing prior to terminations the property interest that he asserts is the foundation of the due process rights is a veterans preference act michigan apply to university and as much as it is not entirely clear from the statute whether the legislature intended the term state to apply to mean that why didn't you argue just as a matter of statutory  interpretation it doesn't apply the way i read your brief is to say it does apply but there is actually three reasons why it was unconstitutional as applied the reason i'm focusing on the constitutional argument you honor is frankly because i think it is a stronger argument i do believe that there is the beast that's forfeited in this case that i wouldn't carry on or is it forfeited in this case that we that we have to assume that the statute applies setting aside the state constitution and i'm not forfeiting the argument in fact it is referenced and one of footnote and one of my briefs in the district court was raised in the district court your honor the district court rejected it the argument there was that there was a case to campbell case which was the slater early in the th century held that the statute did not apply to a school district because the school district wasn't listed among the various public bodies that were subject to it the district rejected that argument i don't think the argument here for starts on the basis of statutory construction is best based on the camel decision i think it's based on a notion that when there's a legislature considers state and then put the word state into the statute and then said that the governor was to hold the hearing given that the governor does not have any supervisory authority over the university and really never has had that since at least eight hundred and fifty dollars the legislature could be understood to excluded the university from that term so you raised a different statutory construction argument in the district court and here you've alluded to one enough but no rather than sort of meaningfully developed that argument here yes i have a good alternative ground for getting to the same result my argument on the constitution assumes that the that the statute applies to the university the cases that have raised this issue in the courts over the decades and in fact really almost a well over a century basically assume that and then the analysis is whether or not the nature of the statute essentially makes it fall outside of the legislators legislatures power to regulate the university on that basis and that's what i think the problem here is a constitutional problem the state constitutional problem with veterans preference and if i may turn to that issue  e state university as well as michigan state university university michigan are all of a constitutional body corporates constitution establishes a board which is to govern each of the universities and in with wayne state it's called the board of governors the members of the board are elected by the people and the powers of the border conferred not by the legislators not didn't say prescribe by water as they are prescribed by this act by the constitution itself its given the supervision the general supervision of the institution and also the power to control and direct expenditures from the fans here think the power that is involved is the power of general supervision of the university that phrase general supervision and basically the entire collection of powers was has been interpreted by the michigan supreme court essentially to give to the poor the power to control  manage the institution and this was this was articulated as early as the case of sterling vs the regions of the university of michigan where the the court said that the frame designed to and did provide for its the university's management and control by a body of a man elected by the people at large so how do you distinguish i mean management control that very broad language general supervision which is the constitutional language is very broad could encompass a wide variety of things the michigan supreme court has said it does not include collective bargaining so how do you distinguish and you  constitutional provisions one gave the legislature the power to essentially legislate in the area public employment pursuant to that constitutional authorization is an act of the public employment relations act and pursuant to that act the universities  the issue was whether the university had to collect the borrowing bargain with a union which was essentially established by a very minute you don't have a claim here that p p a it's not within the constitutional authority of the legislature to enact generally you know not generally but it cannot lie to the university yes so but we would have the same conflict here right so that the legislature has the power to legislate with respect to labor relations presumably that encompasses the m v p a as well so we any conflict that was there is also here you know with the region's case is not go so far as to say that the legislature has the power to enact any of anyone touching on oh surely not that or that the the constitutional autonomy of the university limits to your limits the legislature is power in order to determine whether or not it is limited we must look at how it affects the university in the regions case the only thing that the university has had to do i should say only obviously was more serious for them at the time but what it was required to do was to bargain the terms of conditions of employment with a union the legislature did not dictate to the university you must include these terms in conditions in your collective bargaining agreement it did not say you can only dismiss a student for these five causes and if you do so you must have a pretty terminations hearing it did not say that that's what the v p a service the difference here is that the veterans of a hypothetical so the michigan elliot larson civil rights act contains some categories not contained in federal law so wait for example i think is a protected class  fairly characterized i would say as intended for the general welfare that is not the case with the veteran's preference act the valentine kayo general applicability in your view re protected individuals not to the employers in general i mean because the v p a would seem sort of in an overall way it applies to all employers in michigan you're saying that it doesn't apply because he doesn't apply to all employees it applies to all public employees well excuse me your honor it applies to the public employee ploy earth that are listed in the statute right but i mean but so it's status and my question there is are does that make it not a lot of general applicability if it does imply apply to all public employers i'm trying to figure out how you are defining a lot of general applicability here the point at the point you're trying to make your honor and i may have mischaracterized the point by using the phrase general applicability the point i'm trying to make is that it is not for the general welfare this is a statute that the mission supreme court has i'm sorry sir why is that for the general welfare because we want to incentivize military service because military service protects the country military service does protect the country that's for welfare but this is not something that  specifically for the purpose of encouraging individuals to be in the military there's nothing in the case law that suggests that the particular  the particular terms of the statute are very much rooted in the ordinary employment or operation of the institution it does not provide special kinds of the more modern cases case federal federated publications also acknowledge general legislation normally applies to universities it you know if they spoke about electing a president that's a lot different just you know that's a core function of the board other core functions of the board you know what the board does in context much different than the employment of a custod governor can intrude on the legislative function there seems to be an analogy that you could be drawn that the governor's office in to be able to intrude on the decision making at the university to there is obviously the be in another branch but in those cases i just referenced clearly indicate that the universities are subject to general loss unless it impacts their educational spher time between also specifically stated that the michigan veterans preference act applies to all agencies of each brandt's and it's long been held the universities are a branch and department of the executive branch and it's worth noting that thirty five for two michigan veterans preference act references public departments in the case law says universities are publicly work here because the  of alternating strikes from a list picked by the federal mediation and conciliation service gave us a list and we agreed for alternating strikes until one person was left and that's when we came up with in a conference  not in the record you know the judge assets you guys want to govern are involved and we said no we will take an impartial decision maker both sides agree that that argument on the table anymore than  relation also to the you know this blank which is about universities being subject to general laws each a number of those cases cited some very strong language from the brand on a case versus board of regents of you've been quoted regents quoted it  federated publications quoted regents quoting brown western michigan border control quoted it and both newspapers cited peter's regents in branom state in it's been repeatedly held by michigan courts the universities are subject to general was now i will out unless there are more questions i will rely on the points of my brief other than to say a lot of the issues that were raised were not raised in the lower court case one of the main the proposition that none of those claims they're making that were not raised up the claims they were there making that were not raised below are without merit but the court doesn't have to utilize its judicial resources to sift not involve the financial power of the university involved the supervisory powers so this is what the supreme court said in introducing its analysis in this case we do not consider it generally applicable law that implicates universities financial autonomy rather we consider a law that dictates the manner in which the university operates on a day to day basis so it's not the case that all laws of general applicability apply to the university because the supreme court hope in this case that the open meanings act did not so so why does your case not apply but but para does right so para applies you can see that the eliot larsen civil rights act applies you can see that the open meetings act does not apply why is your case more like the that than the other employment regulations we just discussed well there are a number of reasons one is that as i mentioned before unlike the opens meaning act excuse me i like the open to meeting zach the v p a applies to the university's operations on a day to day basis if the supreme court can hold that the application of the open meetings acts to because of that to subcommittees of the board dealing with the presidential selection is a matter of day larsen act with respect to wait so i don't know anything about mr rudolph but let's say mr rudolph was overweight and you said i want to fire him because he's overweight if you were for cut if you were an at will employee you could just fire him for any reason but the say no you can't fire him for that reason so why is that different than saying you can fire a veteran but only for certain reasons book is for difference because your honor the it goes it goes b the statute goes beyond hearing the court will review it later on to determine whether or not there was a protected class that whose interests were violated but you have to bargain yes you have to bargain your honor and in this case we did bargain with them and what we bargained for was  any member of the bargaining unit which would include mr rudolph could be discharged for any just cause and that if the union or the employee disagreed they had available to them a grievance procedure and arbitration in this case mr rudolph did follow the grievance procedure but the union decided in proving mr wood office also not to arbitrate now you're on what happens here is that there is a conflict now that is set up yes we have to collectively bargain the supreme court held out in the early seventy's but now we're told it's not enough to collectively bargain you can bargain all you want with the union that represents the custodians but if it's a veteran you must now deviate from what the collective bargaining says throw that out the window because now it's not just any just cause it's the specific cause and even if you find a specific cause you must hold the pre statutes are irreconcilable they can't operate together that seems like a question of statutory interpretation that may be sort of raised in the district court that the para pre amps the and the p a but those arguments weren't raised until now it's not preemption argument your honor it's an argument that shows that the policy underlying the veterans preference act which is an issue to be considered in the constitutional argument i've cited cases on this the policy that's that supports the application of the act when there is a collective bargaining agreement that covers the very same area and is in conflict with that the collective bargaining agreement prevails para prevails i'm not saying it's preemption i don't think the court has to go that far i think the court on that particular point needs to only go so far as to recognize that in the circumstances of this case there is simply no strong compelling clear policy which would mandate the application of the d p a where there is a collective bargaining agreement as in this case that conflicts with it i see my time is up thank you very much for your attention thank you both