Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanagh

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# 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 cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( dissenting ).

I respectfully dissent and wo uld grant leave to appeal to consider the significant constitutional issues pres ented by this case.

Plaintiff challenged the validity of insp ections under a city of Detroit ordinance that required inspections of one- and two-fam ily homes before the homes could be sold.

The ordinance au thorized the Buildings & Safety Engineering Department (BSED) to perform inspections pursuant to guidelines developed und er the Detroit City Code:

The department shall prepare a lis t of inspection gui delines to be used in inspection relating to the enforcements of this article. The guidelines shall constitute the comple te 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 performe d were invalid, because the city council never approved any guidelines. Defendant, c ity of Detroit, argued that the provision regarding the city council’s a pproval violated the city chart er’s separation of powers, and thus the inspections performed pursuant to guidelines pr omulgated by the BSED were2

proper. 1 After a lengthy procedural history in which this case was remanded by this Court to the Court of Appeals, and then re manded 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 au thority 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 Castle Investment Co v City of Detroit , unpublished opinion per curiam of the Court of Appeals, issued March 15, 2005, at 3 (Docket No. 2 24411). 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 consid er on appeal whether the approval provision affirmatively int erfered with the executive’s power to enforce the ordinance, or merely

rendered the ordinance in operative 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 th e 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 c ity council to legislat e independently of the mayor’s veto power. In Blank , this Court invalidated provisions in the Administrative Procedures Act (APA) that re quired the executive to submit ad ministrative rules to a joint committee of the Legislature before adopting the rules. The joint committee could approve the rules, or it could reject the rule s and refer the rules to the Legislature for a concurrent resolution adopting or rejecting the rules. This Court, in a di vided opinion, concluded that the APA provisi ons violated the constitution’ s enactment and presentment clauses, id. at 122, because neither the joint comm ittee’s approval nor the Legislature’s concurrent resolution would comp ly with the constitu tion’s requirements that all laws be

in the form of bills and all b ills 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 indi cate 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., c oncurring 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 Mi chigan Supreme Cour t, 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 Ap peals’ severance of the approval provision

from the ordinance should be reviewed. This action raises a significant question regarding the separation of powe rs. The city council exerci sed its legislative power by enacting an ordinance. This ordinance mani fests clearly the extent to which the city council intended to delegate ru lemaking authority to the executive bran ch. By severing a provision of the ordinance th at reserved a residue of legi slative power w ith the city council (the only inst itution of government that could properly ex ercise 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 pr oper rulemaking authority into improper legislative power. Cf. Cons t 1963, art 3, § 2.

Finally, assuming that the Court of Ap peals correctly held that the approval provision violated the city charter’s separation of powers , and properly severed this provision, I believe that th e delegation of rulemaking au thority under the ordinance

should be examined to determine whether the delegation provided to the executive branch a sufficient standard by which to exercise this authorit y. Such a delegation must:

[P]rovide[] sufficient st andards as reasonably precise as the subject matter requires or permits, so that the rulemaking authority can be construed as conferring admi nistrative not legislative power and as vesting discretionary, not arb itrary 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 cons titutional standards also merits review, in my judgment.

H ATHAWAY

, J., not participating. To avoid u nnecessary delay to the parties in cases considered by this Cour t before I assumed office, I fo llow the practice of previous justices in transition and p articipate only in cases that need my vote to achieve a majority for a decision.