In re the Petition for a Representation Election Among Supreme Court Staff Employees

Williams, J. (for dismissal). This is a case of first impression. No Michigan or foreign opinion has been cited to us, nor did our research reveal any, — 661 — where a quasi-judicial agency assumed to bring the Supreme Court before it for adjudication. However, those are the facts of this case. The Michigan Employment Relations Commission (hereinafter MERC) has attempted to take jurisdiction over the Michigan Supreme Court to determine a union representation election proceeding in which this Court would be a defendant. We hold that Const 1963, art 3, § 2, headed separation of powers of government, precludes MERC’s assumption of such jurisdiction over the Michigan Supreme Court. We do not here consider whether, or to what extent, Const 1963, art 4, § 48 is modified by Const 1963, art 6, § 7. We order MERC Case No. R77 L-572 dismissed for lack of jurisdiction. I. Facts On December 27, 1977, Local 586, Service Employees International Union, AFL-CIO, pursuant to MCL 423.212; MSA 17.455(12), petitioned for an election among certain employees working at the Lansing offices of the Michigan Supreme Court. The proposed bargaining unit included: "All employees in the general list titles, located in Lansing, Michigan. Court officers, custodians, multilith technicians, secretaries, toll terminal operators and receptionists.” More specifically, the bargaining unit included persons holding the above-designated job categories in the employ of the offices of the Supreme Court Clerk, Reporter, Crier and State Court Administrator. At the request of the Court, MERC both postponed a pre-election conference originally sched — 662 — uled for January 16, 1978, and agreed to consider the jurisdictional question that is the subject of this opinion. Prior to MERC’s consideration, the Court, through then Chief Justice Thomas Giles Kavanagh, indicated in two separate letters to Charles M. Rehmus, Chairperson of MERC, its conclusion that art 6, § 7 and art 3, § 2 of the Michigan Constitution prohibited the statutory jurisdiction in question. In a decision dated September 8, 1978, MERC issued a finding that it did have jurisdiction and ordered that an election be conducted. MERC observed: "Art 3, § 2 (separation of powers provision) can be dealt with summarily on the observation that clerical employees do not exercise the powers of one branch of government or another.” This Court on October 5, 1978, issued an order to MERC and petitioner herein to show cause why this Court should not dismiss the petition for lack of jurisdiction. Both MERC and petitioner filed briefs on the matter. II. Discussion It is elementary that in Michigan government the legislative, executive and judicial branches are separate and co-equal. In re 1976 PA 267, 400 Mich 660, 662-663; 255 NW2d 635 (1977). Article 3, § 2 makes this clear and specific. It reads: "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.” (Emphasis added.) — 663 — The Michigan Supreme Court, of course, is charged with superintending the exercise of the judicial power. Art 6, § 41 and art 6, § l.2 What the facts of this case show is MERC attempting to bring the Michigan Supreme Court before it as a party in a lawsuit, in which MERC will make a determination and may cause an order to issue affecting the Michigan Supreme Court. In short, MERC is attempting to exercise jurisdiction over the Michigan Supreme Court. As already indicated, there is no prior Michigan case that has addressed itself to this issue. This may well be because it is such an anomalous situation. It is difficult to envision any comparable situation where a subordinate arm of the judicial branch of government would attempt to exercise an executive power over the Governor or a legislative power over the Legislature. But here an executive agency is attempting to exercise adjudicative authority over the Michigan Supreme Court. As a further incidental indication of how far out of the order of things it is to have MERC holding court over the Supreme Court, an appeal from the order of MERC is to the Court of Appeals. If MERC has jurisdiction to determine cases with the Supreme Court as a party, then the Supreme Court might be in a position to appeal from the decision of MERC to the Court of Appeals, which again is an inferior tribunal to the Supreme Court. In short, MERC assuming jurisdiction over the Supreme Court puts everything upside-down. — 664 — III. Respondents’ Arguments At the outset, it is significant to note that respondents have produced no precedent on the issue of an administrative agency’s assumption of jurisdiction over a Supreme Court. Furthermore, in its opinion asserting its jurisdiction to bring the Supreme Court before it as a litigant, MERC summarily dismissed the separation of powers argument: "Art 3, § 2 (separation of powers provision) can be dealt with summarily on the observation that clerical employees do not exercise the powers of one branch of government or another.” MERC’s conclusion focuses on the wrong point. It is not determinative that certain Supreme Court employees may or may not be subject to the public employment relations act, MCL 423.201 et seq., MSA 17.455(1) et seq. The point is that MERC is attempting to bring the Supreme Court before its tribunal as a party defendant. That is what is critical; it is that MERC is taking jurisdiction over the Supreme Court itself, not certain of its clerical employees. Likewise, MERC’s argument in its brief is beside the point. There MERC argues that because Const 1963, art 4, § 483 does not specifically exclude Supreme Court employees but does exclude state civil service employees, by negative implication Supreme Court employees are included. Whether Const 1963, art 4, § 48 includes or excludes Supreme Court employees has nothing whatsoever to — 665 — do with whether 1965 PA 379 should be, or can be, interpreted to give MERC judicial jurisdiction over the Michigan Supreme Court, in violation of the doctrine of separation of powers established by Const 1963, art 3, § 2. In addition, the Legislature in enacting 1965 PA 3794 pursuant to Const 1963, art 4, § 48, has not by specific reference included the Michigan Supreme Court. Since an inclusion to give such jurisdiction to MERC would contravene the requirements of Const 1963, art 3, § 2 and be unconstitutional, it would be normal interpretative practice to read 1965 PA 379 as not giving jurisdiction to MERC over the Michigan Supreme Court as in this case.4 5 IV. Conclusion We conclude that the Michigan Constitution does not, as a matter of interpretation or logic, authorize MERC to take jurisdiction over the Michigan Supreme Court. We have been cited no precedent to the contrary. It is good common sense as well as good law that if a tribunal of the executive department would sit in judgment over the Supreme Court, with respect to the issue, the Supreme Court would no longer be functioning as the Supreme Court. That would erode a cornerstone of our Constitution and of our system of government. We therefore hold that — 666 — Const 1963, art 3, § 2, considered with Const 1963, art 4, § 48, precludes MERC from taking jurisdiction over the Michigan Supreme Court. MERC Case No. R77 L-572 is ordered dismissed for lack of jurisdiction. No costs, a public question. Coleman, C.J., and Fitzgerald and Ryan, JJ., concurred with Williams, J. Coleman, C.J. I agree with the opinion of Justice Williams and write separately only to add another analysis in support of the same conclusion. In December of 1977 Local 586 of the Service Employees International Union, AFL-CIO, petitioned the Michigan Employment Relations Commission, hereinafter MERC, for an election among employees of the Michigan Supreme Court for the purpose of being designated the exclusive bargaining agent for our employees, i.e., their union representative. As set forth in the petition the proposed bargaining unit included: "All employees in the general list titles located in Lansing, Michigan. Court officers, custodians, multilith technicians, secretaries, toll terminal operators and receptionists.” The MERC scheduled a pre-election conference for January 16, 1978. At the request of this Court the conference was postponed pending a determination by MERC as to whether the public employment relations act (hereinafter PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., is applicable to employees of the Supreme Court in light of Const 1963, art 3, § 2 and art 6, § 7. On September 8, 1978, MERC issued an opinion holding that ministerial level employees of the — 667 — Michigan Supreme Court have the right to organize and engage in concerted activity within the meaning of PERA. Accordingly MERC ordered that an election in the proposed bargaining unit should be conducted. On October 5, 1978 we ordered MERC and the petitioning union to show cause why the Court should not order MERC to dismiss the petition for lack of jurisdiction. The apparent basis for MERC jurisdiction is PERA, which provides for the resolution of disputes concerning public employees and specifically provides for the filing of petitions for elections to determine whether there shall be, and, if so, which organization shall be, the exclusive bargaining agent.1 The statutory provisions of PERA, in turn, are authorized, in general terms, by Const 1963, art 4, §48: "The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” The employees of this Court are assuredly "public” employees and, as this Court is a court of record, they are not "in the civil service”.2 The Court’s employees are not, therefore, exempted from the provisions of PERA by the stated exception concerning civil service. Thus, the ultimate basis for the apparent jurisdiction of MERC is the constitutional provision that the Legislature may by legislation regulate the employer-employee relationship where public — 668 — employees, other than civil servants, are concerned.3 Pursuant to PERA, MERC has exercised jurisdiction over disputes concerning working conditions in general, and specifically over hours and wages, and the appointment and removal of employees.4 The general provision in art 4, § 48 to the effect that the Legislature may by legislation regulate the employer-employee relationship of public employees conflicts with the following speciñc provision concerning employees on the staff of this Court in art 6, § 7: ’’The Supreme Court may appoint, may remove, and shall have general supervision of its staff. It shall have control of the preparation of its budget recommendations and the expenditure of moneys appropriated for any purpose pertaining to the operation of the court or the performance of activities of its staff except that the salaries of the justices shall be established by law. All fees and perquisites collected by the court staff shall be turned over to the state treasury and credited to the general fund.” (Emphasis supplied.) The importance of constitutional questions and the frequency with which they have arisen in the various states and in the United States courts has resulted in the widespread acceptance of certain fundamental rules of construction5 which we apply hereafter. — 669 — First, that there is real conflict between these provisions regarding control over the limited number of public employees on the staff of this Court is clear and insurmountable when reasonable plain meaning is attributed to the words of each. Under art 4, § 48, PERA gives and MERC exercises jurisdiction over virtually all questions that may arise concerning "working conditions” meaning wages, hours, appointment, removal and general supervision practices. Art 6, § 7 specifically grants this Court the powers of appointment, removal and general supervision and it is difficult to find terms clearer than those of the article itself to express the intent to give this Court jurisdiction over all "working conditions”. A first principle of constitutional construction, to avoid finding conflict if possible, is therefore unavailing to solve the problem here. A second rule, fundamental and well settled, is that where there is a conflict between general and specific provisions in the constitution, the specific provision must control, the specific provision being regarded as a limitation on the general provision’s grant of authority. McDonald v Schnipke, 380 Mich 14, 19-20; 155 NW2d 169 (1968); Hart v Wayne County, 396 Mich 259, 273; 240 NW2d 697 (1976). Application of this rule serves another important rule of construction consistently, because neither of the sections is by our construction, rendered void or ineffective: the general provision of art 4, § 48 is left controlling in all cases where the specific provision of art 6, § 7 and the specific exception in § 48 itself, concerning the civil service, do not apply. McDonald and Hart, supra. In addition this construction conforms to the rule that requires attention and respect be paid to the intent of those who framed the constitution. — 670 — That the framers specifically intended to grant this Court the power, within the budget provided to it by the Legislature, over the wages paid to its employees and to govern its own personnel matters, is specifically revealed in the legislative history of the constitutional convention.6 On the other hand, we find no evidence in the legislative history of art 4, § 48 to indicate that the framers were even aware of the latent conflict between that section and § 7 of art 6. For that oversight we express understanding and sympathy. In Board of Control of Eastern Michigan University v Labor Mediation Board, 384 Mich 561, 566; 184 NW2d 921 (1971), we made the same mistake in stating, by way of dictum, that the only exception to the exercise of legislative power given by art 4, § 48 was that of legislative power over the state classified civil service. It is my conclusion that the provisions of PERA may not be extended to be applied to employees of the staff of this Court and, accordingly, I also would order MERC to dismiss, for lack of jurisdiction, the petition filed with it on December 27, 1977. Kavanagh, J. In December of 1977 Local 586 of the Service Employees International Union, AFL671 CIO, petitioned the Michigan Employment Relations Commission, hereinafter MERC, for an election among employees of the Michigan Supreme Court for the purpose of being certified as the exclusive bargaining agent for our employees, i.e., their union representative. As set forth in the petition the proposed bargaining unit included: "All employees in the general list of titles located in Lansing, Michigan. Court officers, custodians, multilith technicians, secretaries, toll terminal operators and receptionists.” The MERC scheduled a pre-election conference for January 16, 1978. At the request of this Court the conference was postponed pending a determination by MERC as to whether the public employment relations act (hereinafter PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., is applicable to employees of the Supreme Court in light of Const 1963, art 3, § 2 and art 6, § 7. On September 8, 1978, MERC issued an opinion holding that ministerial level employees of the Michigan Supreme Court have the right to organize and engage in concerted activity within the meaning of PERA. Accordingly MERC ordered that an election in the proposed bargaining unit should be conducted. On October 5, 1978 we ordered MERC and the petitioning union to show cause why the Court should not order MERC to dismiss the petition for lack of jurisdiction. Because the briefs and arguments of counsel have convinced us we were in error in our original position, we conclude that they did "show cause”. We should not, therefore, order MERC to dismiss the petition, and we should obey the order of MERC to hold an election. — 672 — Good faith and responsible discharge of our duty, however, oblige us to explain to our employees, the union, MERC, and the people wherein we erred and the reasoning which persuades us to correct our mistake. Originally we believed that art 3, § 2 precluded the Legislature from exercising any authority over the employees of this separate co-equal branch of government. It reads: "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.” We also felt that art 6, § 7 gave the Court total, exclusive and unalienable control over its staff. It reads: "The supreme court may appoint, may remove, and shall have general supervision of its staff. * * *” We were convinced that we had to construct an exemption for our staff comparable to the express exemption of classified civil service employees contained in art 4, § 48 in order to comply with art 3, § 2 and art 6, § 7. The section reads: "The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” We regarded the exemption for our staff necessary to resolve the apparent conflict of legislators exercising dominion over what we considered to be our constitutionally delegated responsibility— namely, regulation of the relationship of this — 673 — Court and its staff. In other words, we perceived a violation of separation of powers and constructed an exemption to avoid it. We are now convinced that we were confusing two questions — the existence of legislative power and the scope of it. In the opinion accompanying its decision MERC suggested that no separation of powers question was involved because the employees whose rights under PERA were sought to be enforced were performing ministerial, not judicial, duties, and they did not exercise the powers of one branch of government or another. We are not persuaded that this distinction is significant. The separation of powers question is not involved because of the Constitution itself. Art 3, § 2 provides that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution(Emphasis added.) Art 4, §48 provides that the "legislature may enact laws providing for the resolution of disputes concerning public employees” exempting only state classified civil service employees. We regard art 4, § 48 as the express exception contemplated in art 3, § 2. Therefore, applying PERA to our staff will not violate the separation of powers provision. The question remains whether applying PERA to our staff will conflict with the power granted to this Court in art 6, § 7 to "appoint”, "remove”, and "have general supervision” of its staff. This constitutional power distinguishes our Supreme Court from other divisions of our "one court of justice”. We are convinced that there is nothing inherent in the collective bargaining process itself that would necessarily intrude upon the constitutionally specified power of the Supreme Court to hire, fire, and supervise its own staff. As MERC noted the scope — 674 — of bargaining which would otherwise prevail under PERA may be limited by art 6, § 7. The extent and effect of this limitation on our power to bargain is not before us in this proceeding. We simply acknowledge it and hold that a general duty to bargain does not necessarily involve an unconstitutional intrusion on judicial authority. We no longer view art 4, § 48 as in irreconcilable conflict with art 6, § 7. With apology to our employees, the union, MERC, and the people for any inconveniences suffered on account of our original error, we would have today directed our staff to do whatever is necessary to comply with the MERC order of September 8, 1978. Levin, J., concurred with Kavanagh, J. Footnotes [1] Article 6, § 4, headed general superintending control over courts; writs; appellate jurisdiction, provides in pertinent part as follows: "The supreme court shall have general superintending control over all courts * * [2] Article 6, § 1 headed judicial power in court of justice; divisions, provides in pertinent part as follows: "The judicial power of the state is vested exclusively in one court of justice, which shall be divided into one supreme court * * [3] Article 4, § 48 reads: "The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” [4] Entitled, "An act to amend the title and sections 1, 3, 6 and 7 of Act No. 336 of the Public Acts of 1947, entitled 'An act to prohibit strikes by certain public employees; to provide certain disciplinary action with respect thereto; to provide for the mediation of grievances; and to prescribe penalties for the violation of the provisions of this act,’ being sections 423.201, 423.203, 423.206 and 423.207 of the Compiled Laws of 1948; and to add 8 new sections to stand as sections 9 to 16; and to repeal certain acts and parts of acts.” [5] Ford Motor Co v State Tax Comm, 400 Mich 499, 518; 255 NW2d 608 (1977) (Williams, J., dissenting), citing State Bar of Michigan v Lansing, 361 Mich 185, 195; 105 NW2d 131 (1960). [1] MCL 423.212; MSA 17.455(12). [2] The classified state civil service positions are defined in Const 1963, art 11, § 5 and therein "employees of courts of record” are specifically excluded from the definition. [3] The title of PERA provides: "An act to prohibit strikes by certain public employees; to provide review from disciplinary action with respect thereto; to provide for the mediation of grievances and the holding of elections; to declare and protect the rights and privileges of public employees; and to prescribe means of enforcement and penalties for the violation of the provisions of this act.” [4] See, generally, MERC Labor Opinions. [5] See, generally, 16 Am Jur 2d, Constitutional Law, §§ 58-100, pp 230-284. [6] "I think, really, all this section does that is at all startling or new is to adopt the concept that when the court has money appropriated to it for its operation by the legislature, once the money has been appropriated the court itself will have control over the amount of wages paid to its employees, and so on and so forth, within the limits of the budget. "This would in some ways make it, as we are informed by representatives of that court, more readily possible for the supreme court to govern its housekeeping affairs and to handle matters of personnel over there. They have rather strange methods of obtaining assistance, and this would make it possible, for example, for them to attract people who are actually people with rather special training, and, in some instances, professional people that are on their staff.” (Emphasis supplied.) 1 Official Record, Constitutional Convention 1961, p 1308.