Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

January 16, 2009 

136829 

CASTLE INVESTMENT COMPANY, 

Plaintiff-Appellant, 

v SC: 136829 

 COA: 278075 

Wayne CC: 98-836330-CZ 

CITY OF DETROIT, 

Defendant-Appellee. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the June 17, 2008 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 MARKMAN, J. (dissenting). 

 I respectfully dissent and would grant leave to appeal to consider the significant 

constitutional issues presented by this case. 

 Plaintiff challenged the validity of inspections under a city of Detroit ordinance 

that required inspections of one- and two-family homes before the homes could be sold. 

The ordinance authorized the Buildings & Safety Engineering Department (BSED) to 

perform inspections pursuant to guidelines developed under the Detroit City Code: 

 The department shall prepare a list of inspection guidelines to be 

used in inspection relating to the enforcements of this article. The 

guidelines shall constitute the complete scope of repairs required for 

issuance of the certificate or to be noted in an inspection report. The 

guidelines shall not be effective until approved by city council. [Detroit 

Ordinance 124-H, § 26-3-6 (emphasis added).] 

Plaintiff asserted that the inspections performed were invalid, because the city council 

never approved any guidelines. Defendant, city of Detroit, argued that the provision 

regarding the city council’s approval violated the city charter’s separation of powers, and 

thus the inspections performed pursuant to guidelines promulgated by the BSED were 
2

proper.1

 After a lengthy procedural history in which this case was remanded by this 

Court to the Court of Appeals, and then remanded by the Court of Appeals to the trial 

court, various constitutional issues are now presented to this Court by plaintiff's 

application. 

 First, the Court of Appeals held that the approval provision “permits interference 

with delegated rulemaking authority short of ordinance or resolution by simply doing 

nothing.” Castle Investment Co v City of Detroit, unpublished opinion per curiam of the 

Court of Appeals, issued March 15, 2005, at 3 (Docket No. 224411). I believe that this 

holding warrants further review. The city council expressly reserved its power to 

legislate by enacting an ordinance that relied on future legislative action. That is, without 

the city council’s approval of the guidelines, inspections could not be performed at all 

pursuant to the ordinance. I would consider on appeal whether the approval provision 

affirmatively interfered with the executive’s power to enforce the ordinance, or merely 

rendered the ordinance inoperative absent further legislative action. See Blank v Dep’t of 

Corrections, 462 Mich 103, 130 (2000) (Markman, J., concurring in result). 

 Second, the Court of Appeals cited Blank in holding that the approval provision 

violated the city charter by not requiring the city council to vote on any guidelines once 

proposed, asserting that this would allow the city council to legislate independently of the 

mayor’s veto power. In Blank, this Court invalidated provisions in the Administrative 

Procedures Act (APA) that required the executive to submit administrative rules to a joint 

committee of the Legislature before adopting the rules. The joint committee could 

approve the rules, or it could reject the rules and refer the rules to the Legislature for a 

concurrent resolution adopting or rejecting the rules. This Court, in a divided opinion, 

concluded that the APA provisions violated the constitution’s enactment and presentment 

clauses, id. at 122, because neither the joint committee’s approval nor the Legislature’s 

concurrent resolution would comply with the constitution’s requirements that all laws be 

in the form of bills and all bills be presented to the executive. Const 1963, art 4, §§ 22, 

33. I am not convinced that Blank compels the invalidation of the instant ordinance 

because the approval provision does not indicate that the city council’s approval would 

not itself be submitted to the mayor, Detroit Charter, art IV, ch I, § 4-119 (requiring 

“[e]very ordinance or resolution of the city council” to be presented to the mayor). More 

fundamentally, however, I remain concerned that Blank, and the lower courts in this 

case, have turned traditional separation of powers concepts on their heads. See Blank, 

supra at 130-153 (Markman, J., concurring in result). 

 

1

 The Detroit City Charter states that the city council “is the city’s legislative body,” and 

the mayor is the “chief executive of the city.” Detroit Charter, art IV, ch I, §§ 4-101, 5-

101. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

January 16, 2009 

p0113 

 

3

 Third, I believe that the Court of Appeals’ severance of the approval provision 

from the ordinance should be reviewed. This action raises a significant question 

regarding the separation of powers. The city council exercised its legislative power by 

enacting an ordinance. This ordinance manifests clearly the extent to which the city 

council intended to delegate rulemaking authority to the executive branch. By severing a 

provision of the ordinance that reserved a residue of legislative power with the city 

council (the only institution of government that could properly exercise the legislative 

power, cf. Const 1963, art 4, § 1), the Court of Appeals may have transformed that which 

was delegated by the city council from proper rulemaking authority into improper 

legislative power. Cf. Const 1963, art 3, § 2. 

 Finally, assuming that the Court of Appeals correctly held that the approval 

provision violated the city charter’s separation of powers, and properly severed this 

provision, I believe that the delegation of rulemaking authority under the ordinance 

should be examined to determine whether the delegation provided to the executive branch 

a sufficient standard by which to exercise this authority. Such a delegation must: 

 [P]rovide[] sufficient standards as reasonably precise as the subject 

matter requires or permits, so that the rulemaking authority can be 

construed as conferring administrative not legislative power and as vesting 

discretionary, not arbitrary authority. [Blank, supra at 136 n 7 

(Markman, J., concurring in result) (citations and quotation marks 

omitted).] 

The guidelines, as originally enacted, were “designed to cover minimum health and 

safety standards.” Detroit City Council Minutes, 566-67 (March 19, 1976). Whether this 

sufficiently comports with constitutional standards also merits review, in my judgment. 

HATHAWAY, J., not participating. To avoid unnecessary delay to the parties in 

cases considered by this Court before I assumed office, I follow the practice of previous 

justices in transition and participate only in cases that need my vote to achieve a 

majority for a decision.