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______________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JULY 27, 2001

MICHIGAN COALITION OF STATE EMPLOYEE UNIONS, Plaintiff-Appellee, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) and LYNDA TAYLOR-LEWIS, Intervening Plaintiffs-Appellees, v No. 115579 MICHIGAN CIVIL SERVICE COMMISSION, Defendant-Appellant.

BEFORE THE ENTIRE BENCH TAYLOR, J. This case presents the questionwhether a party alleging a violation of Const 1963, art 11, § 5, the provision of the MichiganC onstitution related to the state civil servicesystem, must make a particularized showing of irreparable harm to obtain a preliminary injunc tio n against the alleged violation. We conclude that sucha showing is required as one conditionof obtaining a preliminary injunction. Accordingly,

we vacate the prel imin ary injunction entered by the circuit court in this case in its entirety. Notably, we are not considering the question whether an actual constitutional violation, which could be remedied by entry of a pe rmanent injunction, has occurred. I. Factual and Procedural Background This case arises from the adoption by defendant Civil Service Commission onMay 8 , 1997, of amended Civil Service Rule 4-6, with a stated effective date of June 1, 1997. While the details of this rule are not important to our analysis, the rule generally governs circumstances in wh ich st ate agencies subject to civil service regulation are all owed to contract and pay for personal services f rom pe rsons who are not state civil service employees and procedures to be foll owe d in that regard. The rule contains two provisions that have been alleged by plaintiffs to be violative of Const 1963, art 11, § 5. 1 First, there is a “preau thor ization”

1 Section 5 generally governs the responsibilities and duties of defendant Civil Service Commission. Central to the prese nt c ase is the last paragraph of this constitutional provision, which states: (continued...) 2provisionthat would allow a state agency to authorize disbursements for any services on a preapproved list without submi ttin g a specific request for approval to the Civil Service Commission. Second, the amended rule would add a new provisionfor “decentralized approval” of contracts and payments for personal services rendered by persons other than state civil service employees in certain situations. InJune 1997, the trial court gran ted plaintiffs a preliminary injunction that prohibited the Civil Service Commission“from implementing, executing, enforcing, or in any way giving effect” to Civil Service Rule 4-6. Critical to the issue presently before this Court, the trial court opined in its oral ruli ng on the preliminary injunction motion that a showing of “some particularized injury or dama ge” was not necessary to obtain a preliminary injunction aga inst a n alleged violation of Const 1963, art 11, § 5. The trial court stated that “i f a violat ion of [§ 5] occurs, my reading is that would be irreparable harm, no t just to the Plaintiffs, but to every citizen of the state.”

1 (...continued) No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provis ions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state. 3InJuly 1998, the Cour t of Appeals granted defendant’s applicationfor leav e to a ppeal from the issuance of the preliminary injunction, and eventu allyaffirmed in part and reversed in part. 2 The Cour t of Appeals opined that the “decentralized approval” subrule of Civil Service Rule 4-6 was “facially unconstitutional” 3 and that the trial court did not

2 While we recognize that the order o f th e Court of Appeals granting leave also stayed further proceedings inthe trial court, over a year passed between the issuance of the preliminary injunction and that Court of Appeals order. It is undisputed that, during this entire period from June 1997 to July 1998, the prel imina ry injunction remained in effect. While there may be reasons to explain the delay, it does seem troubling that the parties were subje cted to such a long period of uncertainty and that a preliminary inju nctio n against an officially promulgated governmental rule remained ineffect for so long without any decision on the merits. We are today issuing proposed changes to the MichiganCourt Rules to establishlimitations on the period in whicha preliminary injunctionmay be in effect pending final resolution of a case. The proposed changes to the court rules are attached as an appendix to this opinion.

3 We note that the Court of Appeals later in its opinion seemed to disavow reaching a final or ultimate conclusion on the constitutional issues: For purposes of reviewing the preliminary injunction only, we determine that the trial court properly concluded that plaintiffs were likely to prevail on their constitutional challenge to the “decentralized approval” procedure, although it incorrectly determined that they will likely prevail in their constitutional challenge to the preapprov al p rovision. . . . We stress, however, that our analysis of these issues is for the purpose of ruling on the propriety of the preliminary injunction only. When the matters are tried, the actual determinations of all plaintiffs’ claims must initially be made by the trier of fact (continued...) 4abuse its discretion by finding that plaintiffs were likely to prevail on that provision. 236 Mich App 96, 102; 600 NW2d 362 (1999). However, the Court of Appeals concluded that the “preauthorization” provisions of the challenged civil service rule were not facially unconstitutional and that the trial court abused its discretion by enjoining those provisions. 236 Mich App 103-105. 4 Central to the present issue, the Court of Appeals rejected defendant’s position that plaintiffs should not have beengranted any preliminary injunction whatsoever because of their failure to show irreparable harm. The Court of Appeals stated: Defendant next argues that no injunction should have beenordered where plaintiffs failed to demonstrate that they would suffer irreparable injury if the injunction was not issued. It argues that “[a] bare allegation of a constitutional violationfails to demonstrate irreparable harm.” We disagree because Con st 1963, art 11, § 5 specifically provides that “[v]iolation of any of the provisions hereof may be restrained or observance compelled by any citizen of the state.” As a matter of first impression, we believe that this language is a constitutional declaration that a violation of Const 1963, art 11, § 5, in itself, amounts to irreparable harm supporting injunctive relief. [236 Mich App 106 (emphasis added).]

3 (...continued) in the trial court. [236 Mich App 104-105.]

4Given that plaintiff s ha ve not filed a cross-appeal, the portion of the Court of Appeals opinion reversing part of the trial court’s preliminary injunctionis not before us for review. 5While it may have bee n more clearly stated, the emphasized language indicates that “a bare allegation of a constitutional violation” is sufficient to show irreparable harm. In other words, the Cour t o f Appeals concluded that a showing of irreparable harm to a particular party is not required for a preliminary injunction against an alleged violation of § 5. We granted defendant’s application for leave to appeal, “limited to the issue whether a showing of irreparable harm is requir ed to justify a preliminary injunction against an alleged violation of section 5.” 463 Mich 925 (2000). II. Analysis We review a trial court’s grant of injunctive relief for

anabuse of discreti on. See, e.g., Holly Twp v Dep’t of Natural Resources, 440 Mich 891 (1992) (exp lainin g that “granting of injunctive relief is within the sound discretion of the trial court, althoughthe d ecision must not be arbitrary and must be based on the facts of the particular case”). Ordinarily, the first requirement that a party must meet to request a trial court to grant any type of relief, including an injunction, is that the party have “standing” to request the relief. This means that a party is normally required to have a sufficiently concrete interest in bringing

a case that it can be expected to provide effective advocacy.

6Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993). Said another way, standing has beendescribed as a requirement that a party ordinarily must have a substantial personal interest at stake in a case or controversy, as opposed merely to having a generalized interest in the same manner as any citizen. House Speaker v Governor, 443 Mich 560, 572; 506 NW2d 1 90 ( 1993). 5 Recently, we have described it even more

5 Justice Powell , in his concurrence in United States v Richa rdson, 418 US 166, 192; 94 S Ct 2940; 41 L Ed 2d 678 (1974), articulated reasons for the requirement of standing, apart from assuring effective advocacy in a particular case: [W]e risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of publicinterest suits brought by litigants who cannot distinguishthemselves from all taxpayers or all citizens. The irreplaceable value of the power [of judicial review] articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarianimplications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. The considerations outlined above underlie, I believe, the traditional hostility of the Court to federal taxpayer or citizen standing where the plain tiff h as nothing at stake other than his interest as a taxpayer or cit izen . It merits noting how often and how unequivocally the Court has expr esse d its antipathy to efforts to convert the Judiciary into anopen forum for the resolution of political or ideological disputes about the (continued...) 7succinctly by indicating that the concept of standing ordinarily requires that a party have “an inte rest distinct from that of the public.” Lee v Macomb Co, 464 Mich ___; ___ NW2d ___ (2001). It is this requirement that unquestionably is targeted by § 5 when it provides that “[v]iolation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” Plaintiffs further contend, howeve r, t hat more thanthis was targeted by § 5's languag e; th at not only did these words eliminate usual sta ndin g requirements, but they also should be read to mean that the usual requirement that no preliminary injunction should issue unless the plaintiff could

5 (...continued) performance of government. Ina similar vei n, the United States Supreme Court observed in Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135 L Ed 2d 606 (1996): The requirement that an inmate alleging a violationof Bounds [ v Smith, 430 US 817; 97 S Ct 1491; 52 L Ed 2d 72 (1977),] must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches. It is the role o f courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of co urts, but that of the political branches, to shape the institutions of government in such fashionas to comply with the laws and the Constitution. 8demonstrate a showing of irreparable harm was eliminated. It is important to be clear that the present appeal involves only the requirements for preliminary injunctive relief, an extraordinary remedy that is sometim es gr anted before a case is even decided on the merits. It is beyond reasonable dispute that a trial court has the authority, and, inappropriate cases, the duty, to enter permanent injunctive relief against a constitutional violation. See, e.g., Sharp

v

Lan sing, 464 Mich ___; ___ NW2d ___ (2001) (discussing availability of injunctive relief against a constitutional violation). Moreover, the plain language of § 5 provides that “[v]iolation of any of the provisions here may be restrained

or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” Thus, it is plain that any Michigan citizen may bring an action in a state trial court against an alleged violation of § 5 and that, if the trial court in ruling on the merits of the case at its final resolutionconcludes a violation has occurred, that violation may be remedied by appropriate injunctive or mandamus relief suchas a permanent injunction. The only question we are considering is whether a plaintiff may also obtain a preliminary injunction against the alleged constitutional violation b efore the case is even decided on the merits without making a particularized showing of irreparable harm.

9To evaluate plaintiff’s position regarding the requirements for a p re liminary injunction in the present cont ext, it is appropriate to begin our analysis by considering the historical background of Const 1963, art 11, § 5. It is generally accepted tha t the state’s modern civil service system had its genesis in the 1936 Report of the Civil Service Study Commission. Council No 11, AFS CME v Civil Service Comm, 408 Mich 385, 397; 292 NW2d 442 (1 980). That commissionissued “a 94-page ringing condemnatio n of the longstanding ‘spoils system’, or ‘patronage system’ [ 6 ] of state personnel practices and detailed recommendations for the

6 The report provided the following description of the prior “spoils system” of state employment: The spoils system presupposes the existence of gov ernmen t jobs to be filled with loyal party workers who can be counted on not to do the state jobbe tte r than it can be done by others, but rather to do the par ty wor k or the candidate work whenelec tions roll around. The state office buildings are nearly empty during political conventions, and state money has always been used— indirectly of course—to enable state employees to mo ve a bout the state and keep political fences in repair. It is impossible to est imate the loss to the state of this kin d of political activity, but the most inexperienced know that the amount is considerable. Not only is the regular work of the state interrupted or interfered with, but its services and funds are put at t he disposal of political parties. [ Id. at 397 n. 10] 10enactment of legislation to establish a state civi l se rvice system.” Id. The following year, the Legislature enacted civil service legislation in 1937 PA 346. However, the bulk of the civil service reforms enacted in 1937 were gutted during th e next regular session of the Legislature in 1939 when, “obviously dissatisfied with reform that had been wrought, the newly elected anti-civil service Legislature adopted a group of bills designed primarily to destroy the civil service system which had just been established. . . .” Council No 11, supr a at 3 99. 7 Fed up, the response of the people of the state in 1940 was to place

onthe ballot and pass a constitutional amendment, 8 described formally as Const 1908, art 6, § 22. This amendment included provisions that defined the state employees to be included in the state civil service, provided for the composi tion and

7 Among other provisions, the 1939 legislation reduced the scope of the state classified civil service, reduced the appropriation for the Civil Service Commission, and provided increased employment preferences for former state employees.

8 As this Court explained in Council No 11, supra at 400­ 401: Finally, in 1940, apparently dissatisfied with four years of political maneuvering and legislative advance and retreat on the c ivil service system issue, the people of Michigan adopted a cons tituti onal amendment establishing a constitutional state civil service system, superseding the 1939 legislation. 11duties of the Civil Service Commission, and, in language that has been continued in our present Michigan Constitution in § 5, provided that “[v]i olatio n of any of the provisions hereof may be restrained or observance compelled by injunctive

or mandamus proceedings brought by any citizen of the state.” Const 1908, art 6, § 22. Giventhis background, we then must ask what exactly was it that the people would have understood they were doing in passing this amendment, because it is this understanding that is the key to its meaning. In particular, it is this inquiry that will answer our question with respect to how expansively the citizens can be understood to have changed the rules, not only regarding standing, but also the rules r egar ding the irreparable injury requirements for securing a preliminary injunction. To begin this probe, basic doctrines regarding constitutional construction are useful to recall. Initially, of course, if the language of a consti tutional provision is plai n, it is that meaning we give to it. As was stated in Petermanv Dep’t of Natural Resources, 446 Mich 177, 184; 521 NW2d 499 ( 1994 ), we examine how constitutional language was “understood by its ratifiers at the time of its adop tio n.” This is straightforward. Yet, what if the cons titu tional language had no plain meaning, but rather is a technical legal

12term or a phrase o f art? In answering this, the great constitutional la w scholar and member of this Court in the nineteenthcentury, Justice Thomas M. Cooley, said that in construing technical legal ter ms used in a constitution “we

mu st suppose these words to be employed in their technical sense.” 1 Cooley, Constitutional Limitations (8 th ed), p 132). Paying heed to this rule, this Court applied this principle to the technical legal phrase “assistance of counsel” in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994): [T]he phrase “assistance of counsel,” by necessity, will not be defined in gr eat detail in the constitution. Nevertheless, it is one of many terms that has “acquired a well-understood meaning, whichthe people must be sup pos ed to have had in view in adopting them.” [ Id. at 310, quoting 1 Cooley, supra at 132.] In a similar vein, this Court observed in Walker v Wolverine Fabricating & Mfg Co, Inc, 425 Mich 586, 596-597; 391 NW2d 296 (1986), that one method of interpreting constitutional language that is “in no way a part of the common vocabulary” (whichwould surely apply to the phrase “injunctive proceedings”) is to “survey contemporaneous judicial decisions and legal commentaries for evidence of a consensus within the legal community regarding the meaning of a term.” This, then, is the rule: if a constitutional phrase is a technical legal term or a phrase of art in the law, the phrase will be given the meaning that those sophisticated in the law understood at

13the time of enac tme nt unless it is clear from the constitutional language that some other meaning was intended. 9 Let us then examine what was understood in the law in 1940 by the phrase “injunctive proceedings.” The traditional rules governing “injunctive proceedings” were well established by 1940 in cludin g a requirement of a showing of irreparable injury to the person or entity seeking the injunction as a conditionfor obtaining a preliminary injunction or, as it was often ter med at the time, an interlocutory injunction. Indeed, a 1905 treatise on injunctions provided that an interlocutory injunction will not be allowed “where the injury whichwill result from the invasion of that right is not irreparable.” 1 High, Injunctions (4 thed), § 22, p 367. Discussion of this point in Michigan case law predating 1940 also indicates that a showing of irreparable harm is a requirement for the issuance of a preliminary injunction. See

9 It is noteworthy that the Michigan Legislature has expressly adopted the same basic principle inconnection with the interpretation of its work, statutes, namely, that common words and phrases are to be understood in conformity with their common meaning, but that technical words and phrases should be interpreted in accordance with their technical meaning: All words and phrase s sh all be construed and understood according to the common and approved usage of the language; but technic al words and p hras es, and such as may have acquired a peculiar and appropriate meaning in t he law, shall be construed and understood according to such peculiar and appropriate meaning. [MCL 8.3a.] 14Baltic Mining Co v Houghton Circuit Judge, 177 Mich 632, 643; 144 NW 209 (1913), where this Court indicated tha t a preliminary injunction may be granted “if it ap pear s that there is a real and substantial question between the parties, to be investigated in a court of equity, and, i n or der to prevent irremedial injury to the compla in ant , before his claims can b e investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation” (citation omitted). Similarly, in B Siegel Co v Wayne Circuit Judge, 183 Mich145, 154; 149 NW 1015 (1914), this Court stated that, for a landlord to obtain a preliminary injunction against structural changes to a building, it was ne cessary to show an “irreparable injury by reason of the damage don e to the freehold through changes in th e b uilding impairing its structural safety.” 10

10 Notably, other cases predating the adoption of the 1940 constitutional amendment that do not expressly sta te that a showing of irreparable harm is a requirement for obtaining a preliminary injunction nevertheless include language indicating that such a requirement was commonly understood to ex ist within the legal community. For example, in Gran d Rapids E R Co v Calhoun Circuit Judge, 156 Mich 419, 421-422; 120 NW 1004 (1909), this Court found no abuse of discretionin a circuit court’s decision to diss olve a preliminary injunction where the circuit court concluded that the action sought to be enjoi ned would not cause irreparable injury to the moving party. Similarly, Heliker v Heliker, 184 Mich 657, 659; 151 NW 757 (1915), noted that a preliminary injunction against cutting trees ona parcel of land was issued after the (continued...) 15Thus, it is clear that in 1940 it was beyond dispute in th e legal community that a party needed to make a particularized showing of concrete irreparable harm or injury inorder to obtain a preliminary injunction. Moreover, there is no basis to conclude that the requirements to secure a preliminaryin junction changed in any pertinent way between the adoption of the amendment in 1940 and the adoptionof its successor, § 5, inthe present Michigan Constitution in 1963,

or even up to this day. The requirement of a showing of irreparable harm remains as it did a century ago. In our latest statement on this issue in Michigan State Employees Ass’nv Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984), this Court reite rat ed the requirement of a showing of ir repa rable harm as a prerequisite for a preliminary injunction, explaining that it was a requirement for the issuance of a preliminary injunction to demo nstr ate “that the a ppli cant will suffer irreparable injury if a preliminary injunction is not granted.” 11

10 (...continued) filing of a complaint alleging “loss and irreparable injury to the inheritance and great damage to the complainant.”

11 We note that Michigan State Employees Ass’nalso arose inthe civil ser vice context. In the course of reversing a preliminary injunction granted in favor of a discharged civil service employee, this Court noted that its “holding addresses the required showing of ir reparable injury necessary to s upp ort the issuance of a preliminary injunction.” Id . at (continued...) 16Accordingly, we conclude that a particularized showing of irreparable harm was, and still is, as our law is understood,

anindispensable requirement to obtain a preliminary injunction. Moreover, the people, in causing the Michigan Constitutionto be amend ed in 1940, evidenced no desire, as they had done with standing, to modify the traditional rules that had pertained with regard to this r equire ment for a preliminary injunction. Therefore, when considering the request for a preliminary injunction in this matter, the trial court and the Court of Appeals were in error in granting any preliminary injunction without a showing of concrete irreparable harm to the interests of a party before the Court. We u nderscore, in accordance with the limited grant of leave in this case, that we are concerned only with the requirements for a preliminary injunction. This opinion expresses no view about the proper resolution of the merits of this case, i.e., whether Civil Service Rule 4-6 is violative

11 (...continued) 135. Th is Court stated that such a preliminary injunction “should issue only in extraordinary circ umstances.” Id. at 166. The Court also outlined that, in additionto the required demonstration of irreparable harm to the moving party in the ab sence of a preliminary injunction, a trial court sho ul d consider (1) harm to the public interest if such an injunction is issued; (2) whether harm to the applicant absent such an inju nctionoutweighs the harm it would cause to the adve rs e party, and (3) the strength of the moving party’s showing that it is likely to prevail on the merits. Id. at 157-158. 17in whole or in part of § 5. III. Response to Dissent Contrary to the possible implication of the dissent, this opiniondoes not preclude the ability to obtain any injunctive relief when the Civil Service Commission acts in violation of § 5. Nothing of the sort has happened. This appeal does not involve what relief is available when, after a hearing on the merits, the court is confronted with whether to issue a permanent injunction. Rather, we are concerned with the preliminary injunction, an injunction that is sought before the parties have had their day in court. Then, in that situationand that situati on alo ne, the petitioner must demonstrate irreparable injury. This is utterly unexceptional. It has, indeed, been our law, as this opinion has taken pains to point out, unvaryingly since Michigan became a state. It is, we believe, the law in every other state of the union as well. Thus, the dissent is incorrect in describing our approach

as being “to completely destroy the power of ‘any citizen’ to compel constitutional compl iance.” Post , p 10. Nothing in this opinion restricts, in any way, the authority of a trial

cou rt to grant appropriate relief, including entry of a permanent injunction, if a Michigan citizen establishes an actual violation of § 5 when a case is decided on the merits.

18Rather, pursuant to the plain language of § 5 stating that “[v]iolationof any of the provisions hereof may be restrained

or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state, ” any Michigan citizen may bring suit to challenge an alleged violation of this provision of the Michigan Constitutionwithout meeting ordinary standing requirements. Further, if the trial court decides the merits of the case in favor of the plaintiff, the trial c ourt ma y thenenter a permanent injunction or other appropriate relief against the violation–evenin the absence of irreparable harm to any person. This is because § 5 ex pressly pr ovides the authority to restrain a violation of its provisions. Thus, if a trial court, in resolving the merits of a case, determines that a violation of § 5 has actually occurred, the trial court necessarily has authority to grant injunctive o r man damus relief against the violation. However, by definition, a decision on a preliminary injunction is made before there is

evena determination of the merits o f a c ase. This opinion merely reaffirms that a plaintiff alleging a violation of § 5 may not obtain preliminary injunctive relief, which in the

or dina ry course of things would be addressed before a constitutional violation has been established, without meeting the traditional requirements for this extraordinary relief. Further, we are not “implying that irreparable harm must
19have already occurred in order for [preliminary] i njun ctive

re lief to be available.” Post, p 6. Rather, as stated earlier, we recognize that a preliminary injunction may be appropriately entered if it is demonstrated that “the applicant will suffer irreparable injury” absent the preliminary injunction (and the other appropriate prerequisites to the grant of a preliminary injunction are met), p 17, quoting Michigan State Employees Ass’n, supra. In other words, a trial court may properly grant a p relimi nary injunctionif a party shows that it will otherwise imminently suffer irreparable harm and the other proper grounds for such relief are satisfied. Finally, unlike the dissent, we see nothing “inconsistent,” p ost, p 13, n 7, in recognizing that any Mich igancitizen has “standing” to challenge an alle ge d violationof § 5, but that a party doing so must make a particularized showing of irreparable harm in order to obtain

a preliminary injunction against the alleged violation. As we have discussed, the plain language of § 5 necessarily requires the courts to allow any Michigan citizen to challe nge an al leged violation of this constitutional provision an d t o obtainrelief if an actual violation is found when the case is resolved on the merits. However, a preliminary injunction before there is a decision on the merits—and, thus, before it

20canbe said that a violation of § 5 has been established in court—is an extraordinary type of relief available only with a showing of irreparable harm. It is no more “inconsistent” to draw this distinction than it is to recognize that there

are multitude of suits between private litigants in which both sides obviously have standing to litigate the case, but neither has any basis to obtain a preliminary injunction against the other. IV. Conclusion We conclude that the lower courts erred in viewing a particularized showing of irreparable harm as unnecessary to obtaining a preliminary injunction against an alleged violationof Const 1963, art 11, § 5. In other words, we read nothing in § 5 that would suggest that, in the civil service realm, the actions of the government are any more susceptible to preliminary injunctive relief than are the actions of any other private or public entity. Pending the resolution of a suit claiming a violation of § 5, a party to such a suit may obtaina preliminary injunction only after satisfying all the requirements traditionally required for this extraordinary relief. Accordingly, the circuit court abused its discretion bygra nting a preliminary injunction in the present case in the absence of such a showing. Thus, we reverse the Court of Appeals in part, vacate the preliminary injunction entered by

21the circuit court in this case in its entirety, and remand this case to the circuit court for any appropriate proceedings consistent with this opinion. C ORRIGAN , C.J., and Y OUNG , and M ARKMAN , JJ., concurred with T AYLOR , J.

22___________________________ 01-XX Proposed Amendments of Rules 3.310, 7.208, and 7.213 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering amendments of Rules 3.310, 7.208, and 7.213 of the Michigan Court Rules. Before determining whether the proposal should be adopted, chan ged before adoption, or rejected, this notice is given to afford any interested person the opport unity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives. Before adoption or rejection, this proposal will be co nsidered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings. Publication of this proposal does not mean that the Court will issue an order on the subject , nor does it imply probable adoption of the proposal in its present form.

[The present language would be amended as indicated below.] Rule 3.310 Injunctions (A) Preliminary Injunctions. (1) - (4) [Unchanged.] (5) If a preliminary injunction is granted, the court shall promptly schedule a pretrial conference. The trial of the action on the merits must be held within 6 months after the injunction is granted, unless good cause is s hown or the parties stipulate to a longer period. The court shall issue its decision on the merits within 56 days after the tri al is completed. (B) - (I) [Unchanged.] Rule 7.208 Authority of Court or Tribunal Appealed From (A) Limitations. After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set asid e or a mend the judgment or order appealed from 23except (1) by order of the Court of Appeals, (2) by stipulation of the parties, (3) after a decisi on on the merits in an action in which a preliminary injunction was granted, or (4) as otherwise provided by law. In a criminal case, the filing of the claim of appeal does not preclude the trial court from granting a timely motion under subrule (B). (B) - (I) [Unchanged.]

Rule 7.213 Calendar Cases (A) - (B) [Unchanged.] (C) Priority on Calendar. The priority of cases on the session calendar is in accordance with t he dates of the clerk’s notice to the parties, except that precedence shall be given to interlocutory criminal appeals, child custodycases , and interlocutory appeals from the grant of a pr eliminary injunction. (D) - (E) [Unchanged.]

Staff Comment : The proposed amendments of Rules 3.310, 7.208, and 7.213 were announced by the Supreme Court in Michigan Coalition of State Employee Unions v Michigan Civil Service Commission , Docket No. 115579 (decided July , 2001). T he amendments would require trial courts to expeditiously decide actions in which prelim inary injunctions have been granted, and would allow them to proceed even if the Court of Appeals has granted interlocutory leave to appeal. Similarly, if the Court of Appeal s granted leave to review entry of a preliminary injunction on an interlocutory basis, that court would be required to give priority to resolu tio n of the appeal.

The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.

24_____________________________________________

_____________________________________________ Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timelycomments will be substantively considered, and your assistance is appreciated by the Court.

Acopy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that theycan make the notifications specified in MCR 1 .201 . Comments on this proposal may be submitted i n writ ing or electronicallyto the Supreme Court Clerk byNovember 1, 2001. P.O. Box 3 0052, Lansing, MI 4890 9, o r MSC_clerk@jud.state.mi.us . When submitting a comment, please refer to File No. 01-XX.

25____________________________________ v S T A T E O F M I C H I G A N SUPREME COURT

MICHIGAN COALITION OF STATE EMPLOYEE UNIONS, Plaintiff-Appellee, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) and LYNDA TAYLOR-LEWIS, Intervening Plaintiffs-Appellees, No. 115579 MICHIGAN CIVIL SERVICE COMMISSION, Defendant-Appellant.
CAVANAGH, J. ( dissenting ). The majority provides interesting commentary onthe civil service system. Yet, it skims only the surface of the issues necessary to the resolution of this case, and while seeming to address a narrow issue, leaves behind a rule that could limitthe power that the people have reserved in themselves. 1 In my view, Const 1963, art 11, § 5 clearly preserves the power of the p eop le to restrain the actions of the Civil Service Commissionwhenever the provisions of the constitution are not complied with. I agree with the courts below that a showing of a constitutional violation may constitute irreparable harm to every citizen of this state, and that each citizenmay not only bring injunctive or mandamus proceedings, but also has a meaningful opportunity to obtain relief. Further, I would hold that Const 1963, art 11, § 5 does not limit the class of citizens who may obtain relief in the form of a preliminary injunction. Therefore, I dissent. I The major it y spends pages upon pages discussing the accepted maxim of constitutional construction that the constitutionshould be given the meaning intended by the people. Additional pages are dedicated to establishing that the existence of irreparable harm is traditionally a preconditionto the issuance of a preliminary inju nction.

1 Despite its attempts to leave the issue narrow, however, the majority expands it s op inion to include discussion of Michigan’s Rules of Court. Because of how the majority decides this case, the opinion is not affected by the proposed court rule incorporated into the majority’s appendix. My comments about the substantive propriety of the court rule will be reserved for d isc ussion as part of the standard procedure for implementing court rule changes. 2Yet, the majority’s observations are somewhat puzzling since neither the trial court nor the Court of Appeals held that Const 19 63, art 11, § 5 eliminates the requirement that irreparable harm must be shown. To the contrary, the courts belo w held that a constitutional violation may cause irreparable harm. The majority errs at the outset by determining that the rule that irreparable harm must be shown somehow forms a basis for vacating the preliminary injunction issue d bythe trial court. Yet, though I agree with the majority tha t irreparable harm must be shown, I believe that the majority is simp lywro ng in basing reversal on the theory that “when considering the request for a preliminary injunction in this matter, the trial court and the Court of Appeals were in error in granting any preliminary injunction without a showing o f concrete irreparable harm to the interests of the parties before t he Court. ” Slip op at 18. Rather, both courts explained why irreparable harm to the parties would exist in this case and clearly found there to be a clear likelihood of

success on the claim of a constitutional violation. The trial court in fact discussed the issue at great length and the trial court opinion reveals that the court unde rsto od the requirements of a preliminary injunction. The fol lo wing excerpt unequivocally shows that the trial court validly

3exercised its discretion and found concrete irreparable harm to the interests of the parties before the Court: Irreparable harm, there has been a zealous plea by the Commission, Counsel for the Commission that these Plaintiff s have to show, as I hear the argument, some particularized harm. Given that none of their positions are immediately scheduled to be eliminated, they cannot make that showing. * * * I understand the Plaintiffs claim, assert their positions are affected, but as I view this case, they stand befo re this Court as citizens of this state, who challenge the conduct of the Commissionin light of its constitutional obligations. And, unless I read this constitutional language as having no meaning whatsoever, a part of Article 11, Section 5 of the 1963 Constitution says very clearly violation of any of the provisions hereof ma y be restrained or observance compelled by injunction, injunctive or mandamus proceedings brought by any citizen of the state. No qualification there. And, that clearly means does somebody have to show some partic ul arized injury or damage as a result. I don’t think so. Because, every citizen of this state is entitled [to] have a civil service system that works, that does th e st ate’s business a ndd oes it fairly, does it honestly, does it economically, an d we ’re all affected. So to that extent, to the extent that any contract is entered to [sic] in violation of this constitutional provision, that any position is abolished in violationof the constitutional provision, every cit izeno f this state is damaged. And, I believe that I am obligated here to effectuate that language certainly, that language takes precedence over . . . some of these other holdings. [2] I mean, we need to keep in m ind . . . this came about b ecause the Legislature did not act

2 Citations omitted. 4sufficiently in the view of Michigan citizens to protect their interest in having a strong system of merit in selecting public employees, but in effect allowed, and apparently had been present for many, many years, a spoils system. And so, they weren’t just satisfied to make changes and create [Const 1963, art 11, § 5], they said not only are we making changes, we are going to empower any citizen of this state by an act ion, essentially, at any time to assu re that this provision is complied with. So ineffect, if a violation of this occurs, my reading is that would be irrepara ble harm, not just to t he Plaintiffs, but to every citizen of this state and the Plaintiffs or someone else, the citizens of Bay City or the factory workers of General Motors Corporation can file an action to bar this unlawful, alleged unlawful activity . And inthis case, I ’m s atisfied that there is a sufficient showing the citizens would be harmed, because it appears that at least one or more of the provisions of Article 11, Section 5 are not complied with under the rules as proposed. [Emphasis added.] This language demonstrates that the trial court’s holding was

n ot that plaintiffs are relieved from showing irrepa rabl e harm, but that a constitutional violation irreparably h arm s every individual in this state. In other words, the harm resulting in an art 11, § 5 context does not flow from an actiontaken by the Civil Service Commission against a specific individual as would be the case under the commission’s view. Instead, the harm flows from the violation itself, and flows to each individual citizen. The majority holds that any citizen may obtainpermanent injunctive relief after a constitutional violation occurs, but

5that a citizen may not obtain a preliminary injunction to enj ointhe probable harm that could result from a constitutional violation. The majority correctly recognizes that the derogation of a constitutional right has been held to be irreparable harm for the purposes of determining injunctive relief. Slip op at 9-10. Thus, the type of injury wrought by

a cons titutional violation can clearly be irreparable. The majority’s error lies in implying that irreparable harm must have already occurred in order for injunctiv e r elief to be available. The fundamental flaw in this logic is that the point of a preliminary injunc tion i s to preserve the status quo ante and prevent the harm from occurring until a decision may be rendered on the merits. In other words, preliminary injunctive relief is designed to meet the threat of a future wrong. 42 Am Jur 2d, Injunctions, § 2, § 10. In any event, an applicant seeking preliminary injunctive relief need only establish a likelihood of success on the merits. See MSEA v Dep’t of Mental Health , 421 Mich 152; 365 NW2d 93 (1984). Further, by precluding preliminary relief incases where

a citizen alleges that irreparable harm will r esult if a constitutional violation is allowed to occur, the majority essentially rewrites the constitution as providing that “violation of any of the provisions hereof may be restrained

or compelled by any citizen seeking permanent in junc tive or

6mandamus relief.” However, the constitution is not so limited. It allows any citizen to compel observance or restrainviolations through injunctive or mandamus proceedings. As the majority aptly points out, Michigan has long recognized the availability of preliminary injunctions. Those injunctions are necessarily issued through injunctive proceedings. Like the trial court, the Court of Appeals recognized that irreparable harm to every citizen occurs simultaneously with a constitutional violation. It wrote: Defendant next argues that no injunction should have been ordered where plaintiffs failed to demonstrate that they would suffer irreparable injury if the injunctionwas not issued. It argues that “a bare allegation of constitutional violation fails to demonstrate irreparable harm.” We disagree beca use Const 1963, art 11, § 5 specifically provides that “violationof any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” As a matter of first impression, we believe that this language is a constitutional declaration that a violationof Const 1963, art 11 § 5, in itself, amounts to irreparable harm supporting injunctive relief. [3] [236 Mich App 96, 106; 600 NW2d 362 (1999).] Inlight of these statements by the cou rts be low, I believe it clear that the problem the majority finds is not withthe failure to address the existence of irreparable harm,

3 The Court of Appeals did say that an “additional” sh owin g of irreparable harm was unnecessary, but it first found that the threatened harm would be irreparable because of the alleged constitutional violation. 7but with the idea that the irreparable harm caused by a violationof Const 1963, art 11, § 5 may be remedied b y preliminary injunctive proceedings brought by any citizen rather th an only by citizens affected in some way peculiar from the rest of the populace. I agree with the courts below and believ e that the majority’s approach is contrary to the language and purpose of the constitution. II The ma jori ty acknowledges that the lower courts stated that a constitutional violation amounts to irreparable harm, but nonetheles s conc ludes that neither court required a finding of the requisite irreparable harm. Specifically, the majority writes: Critical to the issue presently before this Court, the trial court opined in its oral ruling on the preliminary injunction motion that a showing of “some particularized injury or damage” was not necessary to obtain a preliminary injunction against an alleged violationof Const 1963, art 11, § 5. The trial court stated that “if a violation of [§ 5] occurs, my reading is that would be irreparable harm, not just t o th e Plaintiffs, but to every citizen of the state.” Slip op at 3-4. Similarly, with respect to the Court of Appeals opinion, the majority writes: While it may have been more clearly stated, the emphasized language indicates that “a bare allegationof a constitutional violation” is su ff icient to show irreparable harm. In other words, the Court of App eals concluded that a showing of irreparable ha rm t o a particular party is not required for a preliminary injunction 8against an alleged violation of § 5. [Slip op at 6, emphasis added.] While I agree with the majority that the courts below said that a constitutional violation is equivalent to irreparable harm, I do not agree with the conclusion that the courts “in other words” implied that harm to an individual party need not be shown. Rather, in my view, the courts bel ow “ in other words” said that every individual citizen is irreparably harmed by a constitutional violation. I am at a loss t o understand how the Court’s statement that these plaintiffs would suffer irreparable harm can simultaneously be a conclusionthat the plaintiffs need not show that they themselves would suffer irreparable harm. The majority makes the mistake of re ading the trial court opinion as providing that any citizen can bring suit by saying, “I can bring suit for all of us, because society as a whole is harmed by a violationof Const 1963, art 11, § 5.” In my view, the trial court decision actually provides that a violation of Const 1963, art 11, § 5 injures each citizen individually. As such, every citizen may institute injunctive or mandamus proceedings. Thus, under the trial court opinion, any plaintiff bringing suit would be constitutionally authorized to allege “I will be h urt in dividually because of the

9violation.” 4 Interestingly, the majority concludes: [S]tanding has been described as a requirement that a par ty or dinarily must have a substantial personal interest . . . as opposed merely to having a generalized interest in the same manner as any citizen. . . . It is this requirement that unquestionably is targeted by § 5 when it provides that “violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus procee ding s brought by any citizen of this state.” Slip at 7-9. Despite the fact that the aforementioned constitutional language mentions neither standing nor the requirements for a preliminary injunction, the majority reaches the conclusion that particularized injur y is suspended for the purposes of coming before the Court, but once there, part icul arity is reintroduced in association with the requirement that irrep arable harm be shown. In other words, under the majority’s approach, anyone cancome before the court to seek

aninjunction, but if the person cannot show the type of particulari zed ha rm that would normally be required for standing purposes, then they cannot obtain relief in the form of a preliminary injunction. The effect of such an approach is to completely destroy the power of “any citizen” to compel constitutional compliance.

4 In any event, this issue relates to the question of standing, as will be further explained. 10The constitutional lan guage does not provide only that injunctive proceedings may be brought by any citizen. It addit iona lly says that a violation may be restrained or observance compelled by any citizen. Yet, under the majority view, only a citizen whose job will be adversely affected by

a decision of the commission may restrain the violation by preliminary injunctive proceedings. Thus, in the context of preliminary proceedings, the protection afforded to “any citiz en” of this state effectively becomes a protecti on afforded to a limited class of citizens. I cannot support an approachthat allows all citizens with valid lega l claims regarding a constitutional violation to institute legal proceedings, but which nullifies the purpose of those proceedings by making preliminary injunctive relief per se

un available to a large percentage of those citizens desp it e the contrary purpose and language of our constitution. I believe that the problem creat ed by the majority approachstems in part from the fact that the majority injects particularity into its a naly sis of irreparable harm, rather thanlimiting th e qu estion of particularity to the standing context. The generally accepted analysis used in preliminary injunction cases considers four factors: har m to the public interest if an injunction issues, whether the harm to the applicant in the absence of a stay outweighs the h arm to the opposing party if a stay is granted; th e st rength 11of the applicant’s demonstration that the applicant is likely to reveal onthe m erits; and demonstrationthat the applicant will suffer irreparable injury if a preliminary injunction is not granted. [ MSEA v Dep’t of Mental Health , 421 Mich 152; 365 NW2d 93 (1984).] The focus of the four-factor analysis is onthe type of injury rendered by the issuance or nonissuance of an injunction. In the context of issuing injunctions, irreparable injury has speci al meaning under the law. The injury is traditionall y defined in terms of whether the injury can be repaired by means other than through the issuance of an injunction. 5 Althoughit is true that the MSEAtest and the tests applied in various ca ses cited by the majority refer to injuries to the “plaintiff” or to the “complainant,” the references are fairly unremarkable since it is a lway s the complainant who seeks redress of an injury. Also, in an injunctioncase involving subject matter not governed by a constitutional provision such as Const 1963, art 11, § 5, the complainant will have had to prove particularity in order to establishstanding. What is remarkable, however, is the fact that the majority offers no authority for the proposition that

a plaintiff must show that the harm he suffers is somehow

5 For example, Black’s law dictionary provides the following explanation, “‘Irreparable injury’ justifying an injunction is that which cannot be adequately compensated in damages or for which damages cannot be compensable inmoney.” Black’s Law Dictionary (6 th ed), p 786. 12irreparable in a different way than it is irreparable to any other plaintiff. The reason, in my view, is that the “requirement that a party ordinarily must have a substantial personal interest at stake in a case or controversy as opposed merely to have a generalized interest in the same manner as any citize n,” 6 pertains to standing and not to the question wh eth er a party will suffer irreparable harm. 7 Here, Const 1963, art 11, § 5 specifically confers standing on all citizens. For all these reasons, I believe tha t th e majority opinion is erroneous and that its reasoning fails to support its conclusion. I prefer the reasoning and holding of the trial court. I wou ld, therefore, affirm the recognition by the courts below that irreparable harm may be established by

6 Slip op at 6-7.

7 As was recently recognized by a majority of this Court in Lee v Macomb Co , 464 Mich ___; ___ NW2d ___ (200 1), the t ype of particularized harm referenced by the majorit y i s clearly a requirement of the standing doctrine. As noted previously, no similar particularity requirement is required as part of the irreparable harm inquiry. However, even if I agreed with the majority that particularity is required in the context of irreparab le har m, as explained at length in this opin ion , I believe it is inconsistent to conclude that the people of the state of Michigan intended to suspend th e requirement of particularized harm for the purpose of allowing citi zens to enter the courtroom door, but nonetheless those citizens must afterward show the very type of particularized, c oncrete harm suspended for standing purposes in orde r t o receive a preliminary injunction. 13proof of a violation of Const 1963, art 11, § 5, and hold that the trial court did not abuse its discretion. W EAVER and K ELLY , JJ., concurred with C AVANAGH , J.

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