draft

54 Wayne L. Rev. 1791, *






Copyright (c) 2008 Wayne State University

The Wayne Law Review



Winter, 2008



54 Wayne L. Rev. 1791



LENGTH: 15130 words



ESSAY: THE CHARTER FORM OF COUNTY GOVERNMENT: WAYNE COUNTY, 25 YEARS LATER



NAME: George E. Ward+



BIO:



+ Adjunct Professor, Wayne State University Law School; Adjunct Professor, Michigan State University College of Law. B.A., 1963, University of Detroit; J.D., 1966, University of Michigan Law School. Mr. Ward served as President of the Wayne County Charter Commission, 1980-81.



SUMMARY:

... Thus, residents of home-rule cities within Wayne County are now subject to both the county's Article 7, Section 2 power, and a similarly phrased power granted to home-rule cities by Article 7, Section 22. ... Other Elected Officials and Agencies In connection with Wayne County Charter section 4.112, the staff comment states that Elected Departmental Executives are "constitutionally created officers, who have certain powers and duties which are not subject to revision by the Legislature." ... Stressing the importance of a "unified county budget" in its final report, the Charter Commission's Tax and Finance Committee stated that "all county departments and agencies, including . . . those departments headed by elected officials, are part of one unified county budget and budget process . . . no county department or agency may expend anyfunds which have not been approved as part of the appropriations ordinance." ... No. 438 and could not terminate the funding to Wayne County, even if full state funding for the other counties was not achieved by 1988. ... The unique issue of how provisions of Wayne County's constitutionally based home-rule charter, which give binding effect to budget adoption, and require centralized purchasing, affect Wayne County's responsibility to provide judicial services, has not been authoritatively resolved. ... County interests may come in conflict with those of a home-rule municipality in any of three ways: 1.Where the county offers a service in the territory of a municipality, which will displace a similar service program of the municipality; 2.Where conflicting ordinances are enacted by the County and by a municipality; and 3.Where the county chooses to locate one of its operations on county-owned land in the territory of a municipality, contrary to a municipal zoning ordinance.



TEXT:

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I. History of Commission Form of Government



During the last century, the inadequacy of the old county structure for the needs of a large metropolitan county like Wayne, became more obvious with each passing year. As early as 1921, the Detroit Bureau of Governmental Research DBGR sought to amend the state constitution to authorize home rule for "any county that is fed up with the kind of comedy that goes for county government in many parts of Michigan." 1 [*1792]



To illustrate how inefficient the "administration of county business" was in 1921, the DBGR gave the following description of Wayne County's structural problems:



In Wayne County the Board of Supervisors is made up of 97 members . . . the important work of arranging the county budget is delegated to a Committee on Ways and Means of 18 members . . . [The 1920 budget has] been termed by two prominent officials as "the worst budget in the history of Wayne County. 2







The DBGR went on to say: "the Board of Auditors have been called the 'Kings of the County,' but they are kings in name only . . . 'no single authority in the county can require that things be done that need to be done.'" 3



Although the 1921 effort to amend the Michigan Constitution failed, dissatisfaction with county government continued to grow. Proposed constitutional amendments to authorize county home rule were offered again in 1934 and 1936, but defeated by the voters. 4 Grand jury revelations in 1942 and 1943 resulted in a proposed constitutional home-rule amendment for Wayne County only, but this, too, failed. 5



A. Michigan Constitution of 1963



When delegates to a new State Constitutional Convention ("Con Con") were elected in 1961, the issue of county governmental reform was high on the agenda. 6 Some emphasized the relationship between good government and a sound economy: "effective county government," argued Delegate Judd, "can encourage industrial growth in the metropolitan community and hence in the state." 7



There was considerable debate at Con Con about which officers in a county organized under a locally drafted charter should continue to be [*1793] elected, and which should be appointed. Delegate McCauley, from Wayne County, spoke for those who supported "true" home rule, when he said: "we in counties . . . want the right to determine . . . whether or not we should have a[n elected] sheriff . . . a prosecutor . . . a register of deeds. These are the items that should be . . . passed upon by the persons at the grass roots level." 8



All attempts during deliberations at Con Con to limit local discretion by mandating elective status for a home-rule county's sheriff, prosecutor, treasurer, clerk, and register of deeds (the "Elected Departmental Executives") were rejected. 9 One proposed amendment which would have required the continued election of these five officers was formally withdrawn due to the perceived "mood of the convention." 10 Amendments offered by Delegates Hart and Downs to require the continued election of the prosecuting attorney and sheriff were rejected by large margins. 11 Delegate Marshall summed up the attitude of the majority by saying: "I think that people with the pure home rule status should have the right to determine which officials, if any, they want to have remain elected." 12



Delegates also debated whether the county home-rule option should be given effect by the constitution itself (self-executing) or be made dependent upon enabling legislation (non-self-executing). Reform-minded delegates feared that if non-self-executing home rule were adopted, nothing would change. Delegate Downs, for example, predicted that "the so-called county courthouse gang will have no trouble at all in having their friends and cronies in the Legislature see that nothing is done." 13



Although the Con Con majority decided not to make county home rule self-executing, it did express an intent for counties to have the same broad local discretion that was authorized for cities by the Constitution of 1908. 14 As Delegate Elliot, chairman of the Local Government [*1794] Committee, stated; "what we have done here is take exactly the same steps in the area of county home rule as our predecessors in 1907 and 1908 in the area of cityhome rule . . . ." 15 Thus, Article 7, Section 2 of the Constitution of 1963 authorizes a form of county government "different from that set forth in this constitution." 16



But the debate did not end at Con Con. The struggle over county home rule shifted to the Legislature, where opponents soon made clear that they were as determined as ever to deny Wayne County the same broad local discretion possessed by home-rule cities. A city charter commission has discretion to decide whether the city's executive officers shall be elected or appointed, the length of their terms, the size of the legislative body, whether elected at-large or from districts, and whether city elections shall be partisan or non-partisan. 17 A county charter commission, however, is denied discretion on all of these issues. 18



Consequently, the Charter Counties Enabling Act (Enabling Act) 19 disappointed many local government experts. Although it allowed for an elected chief executive, it also mandated that elected officials head five departments within the executive branch. 20 Experts feared that an executive branch fragmented by this "multiple elected executives" requirement would be no better than government by commission. In the January 1967 issue of the Michigan Municipal Review, University of Michigan Political Science Professor Arthur W. Bromage weighed in:



The problem in Michigan is complicated by the nature of the county home rule act of 1966. It does not provide for a true county executive. Home-rule counties may have a partisan,



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elected county mayor, but he is more of a coordinator than a working, integrated executive. There is still the problem of the elected constitutional county officers such as the sheriff, clerk and treasurer. In Michigan, Act 293 of 1966 needs amendment to permit a chief executive officer in fact as well as name. 21



In the next fourteen years, no Michigan county converted to home rule. 22



In the meantime, the fiscal condition of Wayne County went from bad to worse. 23 Then Governor William Milliken believed that an enabling act granting broader local discretion-one more in tune with that provided for city home rule-was the key to solving Wayne County's perennial fiscal mess. Earl M. Ryan of the Citizens Research Council of Michigan explained:



The governor has sought three basic changes in Wayne County government:







1.An elected county executive who would be responsible for administering departments, preparing the budget and representing the county. The executive would have veto power over actions of the county board.







2.All of the executive officials, with the exception of the prosecuting attorney, would be responsible to the elected county executive.







3.The independence of the Wayne County road commission would be ended. 24



[*1796]



In other words, the Governor's requisites for change included an end to the electoral independence of Elected Depart-mental Executives, except for the prosecutor. 25



As an inducement, Milliken's 1979 State of the State address proposed assumption by the State of court costs, presenting this as a way of relieving "the financially hard-pressed governments of the City of Detroit and the County of Wayne of at least $ 9.6 million and $ 1.2 million, respectively." 26 To saddle counties with the cost-burden for Michigan's "one court of justice," some argued, was as illogical as, say, imposing the costs of state police posts on counties where they are located. In a letter to the State Court Administrator, dated June 7, 1979, George H. Cross, Wayne County's then Corporation Counsel, wrote that "since the courts . . . have ruled that they all are . . . 'one court of justice,' the only conclusion that intelligent men can reach is that State Courts should be financially supported by the State. . . .The County of Wayne cannot allocate another dime to operate the court system." 27



In July of 1979, the Legislature approved an appropriation of $ 8.4 million for the initial phase of the state's takeover of court costs. 28 But, as the Governor saw it, the Legislature and Wayne County were stalling on reform. They still had done nothing of substance to convert Wayne's government from the old commission form of government with multiple elected executives to a new chief executive form of government. 29 The Governor was not happy. 30 He continued to maintain that the board of commissioners was inefficient and a waste of money and reiterated his requirement for a strong county executive. 31 To the consternation of many in Wayne County, the Governor vetoed the appropriations bill and blamed his veto on "Wayne County's failure to reform its form of government." 32



In September of 1979, with payless paydays looming, Governor Milliken appointed a fifteen-member task force, chaired by Lt. Governor Brickley, to devise "proposals for streamlining Wayne County's government and making it more accountable." 33 The Governor was leaning hard on Wayne County: [*1797]



Now that Wayne's back is against the wall and it faces massive layoffs and cutbacks of services, only state aid and state-approved borrowing power can tide the county over. The governor is blocking that help until he sees real progress toward restructuring the county government. Once he sees that, apparently, he will open the way for interim relief. . . . High noon approaches. 34







The Brickley-led Task Force embraced the Governor's thinking. One of its proposals was to amend the Enabling Act to provide a much broader local discretion, sufficient to eliminate the elective status of all elected departmental executives, except the prosecutor. 35 However, to use Delegate Downs' colorful phrase, "the county court house gang" fought hard against any amendment that would eliminate the elective status of the elected departmental executives, and in this fight, they won the support of the Department of Attorney General. 36



Immediately after publication of the Brickley Task Force report, the Attorney General issued an opinion, which helped anti-home-rule legislators garner necessary votes to retain the enabling act's requirement for multiple-elected executives. 37 The opinion's aversion to county home rule is apparent in its two principal defects. First, it ignored the threshold question of what "general law" means. 38 As used by a constitution in the grant of a home-rule option, "general law" is a limitation on legislative authority, proscribing legislative interference with non-general matters, that is, matters of purely municipal concern. 39



Thus, in Haynes v. Bonem, 40 for example, the New Mexico Supreme Court rejected a state law which would have deprived a city of discretion for a five member council. That court held that "a law general in form cannot, under the Constitution, deprive cities of the right to legislate on purely local affairs . . . ." 41 [*1798]



In Windham Taxpayers' Ass'n v. Windham, 42 the Connecticut court held that "a general law, in order to prevail over a conflicting charter provision of a city having a home rule charter, must pertain to those things of general concern to the people of the state, and it cannot deprive cities of the right to legislate on purely local affairs . . . ." 43 And in La Grande v. Public Employees Retirement Board, 44 describing mode of local organization as the "central object of home rule," the Oregon court rejected a state law which had purported to mandate a particular organizational structure for a city agency, holding it was not a "general law" and thus not authorized. 45 "When a statute is addressed to . . . the structure and the procedures of local agencies, the statute impinges on the powers reserved . . . to the citizens of local communities [by our constitution]." 46



If Michigan is ever to attain consistency with the accepted meaning of home rule, our Legislature and our courts must recognize that "general law," as used in the context of constitutional home rule, is authority only for laws on subjects which affect a population larger than that of a single municipality. As the Connecticut Supreme Court in Windham Taxpayers' Ass'n., said in holding that Windham's home rule charter would pre-empt the state's town-meeting act: "it is of no import to the rest of Connecticut whether the town of Windham holds a second referendum on an issue on which its voters have already [expressed themselves]." 47



The Legislature should consider adding language to M.C.L.A. Section 45.514(1)(g) to provide that no statute regarding counties or county officers adopted after a county has converted to home rule under Article 7, Section 2 shall apply to the charter county unless the Legislature has expressly found that the issue addressed by the new statute is of more than purely local concern and thus may constitutionally be applied to a home rule county. Not only would such an approach eliminate confusion in statutory interpretation, but it would help insure that the people's desire for county home rule will not be inadvertently thwarted in this era of term limits by a Legislature which is not fully aware of the historical struggle for county reform.



Moreover, there is precedent for this approach. In Cincinnati Bell Telephone Co. v. Cincinnati, 48 the Ohio Supreme Court, faced with [*1799] plaintiff's claim that a tax imposed by ordinance under the city's home rule power had been displaced by state law, abolished implied preemption and held that, absent an express statement of legislative intent to apply a statute to a home rule unit of local government, the state statute does not preempt. 49



An aversion to true county home rule is also apparent from the fact that despite language in the state constitution requiring "liberal construction in favor of the county," 50 O.A.G. No. 5587 contradicts section 20 of 1966 P.A. No. 293. 51 The former expressly permits a home-rule county to adopt a county governmental form "different from that set forth in this constitution," and the latter states that "each incumbent officer . . . shall be deemed to be a home rule county officer" for all purposes. 52 O.A.G. No. 5587 however holds that a county charter cannot differ from the form of county government set forth in the constitution and calls the Elected Departmental Executives "constitutional officers," rather than "home rule county officers." 53 In so doing, the opinion claimed to be "constrained to apply the principle of constitutional construction that . . . meaning and effect must be given to both Const 1963, Art 7, Sections 2 and 4." 54 But the fallacy is obvious. The Attorney General used the wrong canon of interpretation to deny Wayne County the option granted by the constitution for a "different" governmental structure than that provided in the constitution. 55 As the Detroit law firm of Miller Canfield would later advise:



The opinion . . . overlooks a more applicable rule of constitutional construction: "If there is a conflict between a general and a special provision in a constitution, the special provision must prevail in respect of its subject matter . . . but the



[*1800]



general provision will be left to control in cases where the special provision does not apply." 56







Despite the obvious anti-home-rule bias in the AG's opinion, that bias was eventually codified. 57 In adopting Public Act No. 7 of 1980, the Legislature chose to retain the "multiple elected executives" requirement. 58 The Legislature did, however, adopt other provisions which Governor Milliken and the Brickley Task Force had called for; namely, provisions for an end to the independence of the road commission, and for an elected chief executive with veto power, responsibility for the budget, and for representing the county in relations with other entities. 59 Thus, the stage was set. Later in 1980, a ballot proposal to create a Wayne County Charter Commission was approved, and Charter Commissioners were elected. 60



B. Charter Commission



In numerous meetings held by the Wayne County Charter Commission during the early months of 1981, it became clear that county leaders and residents generally agreed with the changes on which the Governor was insisting. 61 County Commissioner Samuel Turner testified at a February 10, 1981, meeting concerning the desirability of separating the county's executive and legislative powers: "the basic needs as I see them . . . are separating the functions . . . as we on the board at the present time have exercised both administrative and legislative authority." 62



At a meeting on March 12, 1981, State Representative Sylvia Skrel advocated for "a county executive with the necessary power to make [*1801] tough decisions and lead the county to accountability." 63 Wayne County Commissioner Mary Dumas urged creation of "a strong elected county executive . . . who can be responsive to the needs of all of Wayne County . . . with strong budgetary powers in the legislative body." 64 In calling for an elected county executive, State Representative Jack Kirksey described that official as "a central person who molds everything together." 65 Livonia Councilman Bob Bennett recommended the elimination of "elected positions that the county does not [need, and] combining the County Clerk and the Register of Deeds." 66



At a meeting of March 26, 1981, Bard Young, Region 1-E Director of the United Auto Workers, urged creation of the office of chief executive and that the county commission (then twenty-seven in number) be cut in half. 67 County Commissioner Tom Presnell urged the Charter Commission to provide an elective executive "with strong powers of appointment and the retention of the part-time status of the county commissioners." 68



At a meeting on March 31, 1981, the President of the League of Women Voters (LWV) added her organization's support for an elected chief executive with the power to appoint and remove heads of administrative departments, and for the elimination of elective status for the positions of County Clerk, Register of Deeds, Sheriff, and County Treasurer. 69 Richard Dunn, Chief Judge of the Circuit Court, urged the Charter Commission to exercise the authority granted by Article 6, Section 14 and transfer the judicial clerking functions to a new office of judicial clerk. 70 He stated:



The judicial article in the '63 Constitution . . . permits a home rule county to make a provision in the county charter for a judicial clerkship separate and apart from the county clerk's office. . . . Employees performing judicial services should be under the control of the court . . . I suggest to you...write into the



[*1802]



charter a provision that will enable the courts to operate in a more efficient manner. 71







The recommendations of Mr. Bennett for combining the Clerk and Register; of Mr. Presnell for retaining the commission's part-time status; of the LWV president for eliminating the Departmental Executives' elective status; and of Judge Dunn for an office of judicial clerk were not adopted by the Charter Commission. When Wayne County next considers a charter change, each merits further study. But, before the elective status of a departmental executive can be eliminated, the erroneous interpretation given to Article 7, Section 2's grant of a local option for a "different form" of county government will have to be rectified. 72



C. The Chief Executive Officer



To give the county's Chief Executive Officer (CEO) powers commensurate with the responsibilities fixed on that office, the Charter Commission not only granted the CEO strong budgetary control, but also authority to organize departments and functions of the executive branch in a way that comports best with his or her management style. The Charter provides that "the Chief Executive Officer (CEO) is the head of the executive branch of County government." 73 The Charter states further:



The CEO shall submit a proposed Executive Branch Reorganization plan to the Commission. The plan may provide for the creation or abolition of any department, agency, division, or officer not expressly exempted by this Charter. The plan may assign all the powers, duties, and functions of the County among the agencies or departments not prohibited by this Charter. 74



[*1803]



As I have written elsewhere, 75 by granting a CEO broad discretion for organizing the executive branch, the Charter Commission recognized that the CEO cannot truly be accountable for service-delivery failures, if he or she lacks control over the service-delivery structure of county government. The CEO's principal powers and duties for the control of county finances are contained in several sections of the Charter. 76



In its final report, the Charter Commission's Tax and Finance Committee expressed its intent and expectation that:



By strict adherence to these financial policies and procedures . . . it is believed that Wayne County can restore the confidence of its citizens, the State of Michigan, and the investment community in the County's fiscal integrity . . . Public Act 7 of 1980 requires an outside independent audit for all county funds. Since this audit is a state-mandated function being imposed on the county, the State Constitution requires the state to bear the cost of the audit . . . . 77



[*1804]



The Wayne County Charter was adopted by a vote of the people on November 3, 1981, and, except for the electoral provisions of Charter sections 8.120 and 8.121, the Charter took effect as the new plan of Wayne County government on January 1, 1983. 78



D. Separation of Powers and the County Commission



The Charter establishes the executive form of county government and expressly separates the powers of the executive and the legislative branches. 79 Following tradition, the functions of the County Commission are limited to those appropriate to a legislative body in the American model of government. Thus, the County Commission's principal powers are confined to the adoption of ordinances and resolutions, the approval of budgets and contracts, and oversight of legal compliance and program outcomes (often referred to as "checks and balances"). 80 To enforce the separation-of-powers principle, Charter section 3.118 of the Wayne County Charter provides that "a Commissioner or an employee of the Commission shall not interfere, directly or indirectly, with the conduct of any executive department." 81



E. Can The Commission Do Indirectly What Is Directly Proscribed?



Certain comments to charter sections drafted by the County Commission's staff also reflect a bias against the separation-of-powers [*1805] principle inherent in the executive form of charter government. 82 Not only does the comment to section 3.118 appear to deny the new executive form of government, claiming instead that the charter creates a "flexible form" of government, but the comment to section 3.111, while referring to the executive and the legislative as "co-equal branches" and to the writ of mandamus as a way to enhance legislative power, asserts that the Commission may "do indirectly that which it is not permitted to do directly." 83 Of course, the so-called "compilers' comments" drafted by the Commission's staff have no authoritative value, but the comments to section 3.111, referenced above, seem clearly erroneous under well established law. 84



In Boyd v. Glucklich, 85 for example, the court held that "what [a court] cannot do directly it cannot do by indirection . . . ." 86 Similarly, in Circular Advertising Co. v. American Mercatile Co., 87 the court declared that "if the state cannot, under the law, directly discriminate against or burden interstate commerce, it cannot do so by indirection." 88



Although the separate branches of government are sometimes referred to as co-equal, that term was first used early in the 19th century, before the U.S. Supreme Court's decision in Marbury v. Madison, 89 and refers to the argument made by some, including Thomas Jefferson, that the branches were co-equal in the sense that they shared the power to decide whether a statute was constitutional. 90 But Marbury resolved that question; the co-equal argument was rejected. 91 The constitutional powers are separated and specific powers are allocated to each of the three branches; the powers are not shared by the branches equally. In [*1806] other words, the branches are co-ordinate, not co-equal. This is the point of Charter section 3.118. 92



Since the legislative and oversight powers of the County Commission were modeled after those of our national and state Legislatures, the experiences of those bodies can provide useful guidance at the local level as to the scope and limitations of charter powers.



II. Other Elected Officials and Agencies



In connection with Wayne County Charter section 4.112, the staff comment states that Elected Departmental Executives are "constitutionally created officers, who have certain powers and duties which are not subject to revision by the Legislature." 93 But the comment makes no mention of Brownstown v. Wayne County, 94 which affirmed that, even in the non-charter form of county government where county elected officials are constitutional officers, some of their powers can be taken away by the Legislature. 95



Further, the comment ignores altogether the fundamental change in county government wrought by the county's conversion to home-rule status. 96 In the Charter County of Wayne, not only are the offices of the Elected Departmental Executives created by the Home Rule Charter (i.e., Sections 4.211, 4.221, 4.231, 4.241, and 4.251), but no "core functions" for these offices are specified anywhere in the enabling act or other law. 97



When amendatory Act No. 7, 98 embracing the anti-home rule bias of Attorney General Opinion No. 5587, retained the mandate for "multiple elected executives" opposed by Governor Milliken, many feared that [*1807] some Departmental Executives would falsely equate elective status with constitutional status; reject the finality of the charter-mandated budget process; and continue the practice of petitioning the circuit court to re-write adopted budgets whenever it suited their purposes. To prevent this from happening, the Charter itself-in the very words of the controlling standard laid down in such pre-charter budget cases as Cahalan v. Wayne County Board of Commissioners, 99 states that budget adoption constitutes "a determination by the Commission that the appropriation is a serviceable level of funding." 100 The manifest intent of this section was to assure that budget adoption by the Commission and the CEO would be final and non-appealable, and binding on everyone, including Elected Departmental Executives.



Section 4.272 was included for the same reason. It expressly requires departments headed by elected officers to "exercise their powers and duties within authorized and allotted appropriations." 101 Stressing the importance of a "unified county budget" in its final report, the Charter Commission's Tax and Finance Committee stated that "all county departments and agencies, including . . . those departments headed by elected officials, are part of one unified county budget and budget process . . . no county department or agency may expend anyfunds which have not been approved as part of the appropriations ordinance." 102



Other charter sections also make clear that Elected Departmental Executives must be "team players" in the new executive form of government. For example, Sections 7.111(a)(4) and (b), are relevant when a county Elected Departmental Executive is asked to provide services to a local unit of government, such as the contract whereby the Sheriff's Department is providing security on Detroit city buses. This section states pertinently:



The CEO may . . . (4) provide by contract services or functions in any political subdivision of the County with the agreement of the legislative body of that subdivision and with the approval of the contract by the Commission. . . . This section applies to all contracts of the County, including those to be performed by departments headed by elected officers. 103



[*1808]



Although the Charter, for the most part, has fostered good relations between the CEO and the Elected Departmental Executives, the bias against county home rule and the executive form of county government has never been laid to rest, and is still capable of hampering operations and misleading bench and bar. In Lucas v. Wayne County Election Commission, 104 for example, the CEO attempted to enforce M.C.L.A. section 45.516, which provided:



The ballot resolution [for charter adoption] shall also establish the date for a primary and general election of officers for the newly created elective offices, whose first term shall be for a period ending at the same time as that of the incumbent governor. Thereafter, they shall be elected for 4-year terms concurrent with the terms of the governor. The manner of nomination and election of home rule county officers shall be in all respects the same as that heretofore established for regular county officers. 105







The mandate of M.C.L.A. section 45.516 was also embodied in the Charter's transitional provision, which created initial two-year electoral terms for Wayne's "home rule county officers" so that, in the future, their terms would be concurrent with the term of the CEO and "the term of the governor." 106 As noted by the comment of the Commission's staff to Section 2.212:



The intent of the Charter Commission in framing these provisions was to strengthen the office of the Chief Executive Officer, and to reduce political tensions between those offices and the office of CEO, by eliminating the opportunity for other elected county officers to run for that office while holding safe tenure in their own offices. 107







Even though the Legislature, in adopting M.C.L. section 45.516, quite properly relied on Article 7, Section 2's express authority for a governmental form "different from that provided by" other provisions of the constitution, the Lucas court flatly contradicted Article 7, Section 2, and negated the requirement of section 45.516 for an initial adjustment term and subsequent concurrent terms, stating that "election of those [*1809] officers [to 4-year terms] is required regardless of the form of government which is chosen in a county." 108



Most recently, the Wayne County Clerk filed suit, claiming that section 3.115(10) of the Charter, which permits the legislative body to appoint its own records keeper, is a violation of what she, an Elected Departmental Executive, called her "constitutionally" assigned duties. 109 Not only is the Clerk's claim contrary to the separation-of-powers principle, but it results from an erroneous belief that the charter county clerk continues as a constitutional officer, despite the express statement of M.C.L.A. section 45.520 that she is now a "home rule county officer."



Nevertheless, it is ironic how, in this case, the Commission was "hoist on its own petard;" the Clerk used the Commission staff's comment to support her position against the Commission's decision to appoint its own records keeper. 110 Nor is the problem of conflict within the executive branch limited to elected officers; this can also be a problem among departments and agencies. 111



When the new CEO took office in 2003 and announced that he would appoint a new director of the Community Mental Health Agency (CMHA), the agency filed suit to enjoin the CEO from replacing its director. Judge Gershwin Drain effectively rejected this claim, ruling that the CMHA exists as a part of Wayne County, and thus lacks the legal capacity to sue the county. 112 An important purpose of the charter was to end this kind of internal strife.



III. The Budget



The history of county home rule in Wayne County shows that the dominant reason for the switch from a commission form to an executive form of county government under a home rule charter was to create a high-profile executive leader with sufficient control over county [*1810] resources and personnel to credibly represent the county in dealings with the state and other governmental and private entities, and to manage county operations effectively within available revenues. 113 One of the first acts of County Executive William Lucas was to develop a fiscal integrity plan, including a plan to amortize obligations owed the state. 114 As part of this effort to get control of county finances, the new county government sold Wayne County General Hospital, and revised employee benefit and compensation packages to bring payroll costs in line with area employers and economic conditions. 115



Most importantly, state government was proving more responsive to a Wayne County that was headed by an accountable chief executive. In 1987, the Legislature passed laws to alleviate the County's General Fund deficit which: "(1) allowed the State Emergency Loan Board to loan up to $ 120 million to Wayne County (to be used in funding amounts owed to the State of Michigan), without interest . . . (2) allowed fiscal stabilization bonds to be issued by the County, and (3) increased the cigarette tax for various purposes . . . ." 116



Early in the Administration of County Executive McNamara, the County Commission adopted a five-year recovery plan, which made further operational changes to reduce costs. 117 In his budget letter of September 26, 1996, CEO McNamara boasted of "eight consecutive fiscal years with balanced budgets," and that the county was finally in a position to "strengthen . . . our financial position by adopting a budget which included the Budget Stabilization Fund (known as the Rainy Day Fund)," called for by section 5.161 of the Charter.



To bring about this new solvency, Wayne's CEOs have, from time to time, used the "de-certification" power of section 5.146 and made mid-year reductions in appropriations when necessary to maintain balance between expenditures and actual revenue receipts. 118 Judge Milton Mack, a member of the County Commission that adopted that 1988 five-year [*1811] recovery plan, shared his views recently on the principal significance of county reorganization under the home rule charter. 119 He explained that



the most important change in the structure of county government was to make someone accountable. The success of county government in carrying out its responsibilities still rests on leadership. The new structure created the opportunity for leadership.







I think the change is the reason the county is solvent. Fiscal discipline is a challenge in the absence of someone being in charge. I think the county is operating far more efficiently than it would have been, but for the presence of a county executive. This has also made the county a more effective advocate because the power of the county is behind a single spokesman. 120







IV. Intergovernmental Relations



A. Community Mental Health Agency, County Airports



As noted, M.C.L. section 45.514(1)(d) grants the Charter County of Wayne authority to continue, realign or discontinue "all existing county offices, boards, commissions, and departments," even county departments established by state law, and to transfer their duties within county government so as to improve efficiency and effectiveness. 121



In light of this statutory provision, what is key about the State's takeover of Metro and Willow Run airports, and its attempt to force an unwelcome change in the structure of the Community Mental Health Agency (CMHA), is their status as departments of Wayne County government. The airports were a department of Wayne County government, and the CMHA, though managed by a board of twelve members appointed by the County CEO and by the Detroit Mayor, is a division of Wayne County's Health and Human Services Department. 122 [*1812] Thus, given M.C.L. section 45.514(1)(d), and particularly section 4.113 of the Wayne County Charter, the state, which pushed so vigorously for Wayne's conversion to an executive form of charter government, should be consistent, and now recognize that changes in Wayne County's organizational structure, if any, should be the prerogative of the home rule county. Yet, that has not been the case, with either the CMHA or the airports.



With respect to the County's two airports, the State simply seized control of their assets and operations and placed them in a state authority, stripping Wayne County of property and assets, the value of which exceeded $ 2.1 billion, with annual revenues in excess of $ 200 million. 123 To justify this gross violation of home rule, the Court of Appeals made reference to "allegations of mismanagement at Metro." 124



While no one condones corrupt practices, a better approach-and one far more consistent with home rule-would have been to require a strengthening of the charter's competitive bidding mandate, to include the rebid of service and supply contracts at regular intervals, as well as the addition of a strong public ethics provision, either by charter amendment or by state legislation. 125



B. The Judiciary



One of the initial promises made by the state to induce Wayne County to convert to an executive plan of government under Article 7, Section 2 was, as noted, relief from the local costs of operating [*1813] Michigan's one court of justice. 126 After an encouraging start, the state never followed through on the five-year timetable for full state funding of court costs. 127 In 1983, the Attorney General ruled that the state was bound by the promise it made in P.A. No. 438 and could not terminate the funding to Wayne County, even if full state funding for the other counties was not achieved by 1988. 128



However, public dissatisfaction mounted over the perceived unfairness of the State's selective funding of Wayne County's trial court operations. As a result, 134 units of local government filed the complaint in Grand Traverse County v. State. 129 The Court rejected the Attorney General's view and held that the Legislature's commitment for full state funding was not enforceable. 130



Thus, despite the plain language of Article 9, Section 1, of the Michigan Constitution, 131 as well as George Cross' argument that "the only conclusion that intelligent men could reach is that State courts should be financially supported by the State," the Grand Traverse County opinion adopted a different conclusion. 132 P.A. No. 438 was dismissed by the court as "political posturing" by the Legislature. 133 The court held that the Legislature can impose unfunded mandates for judicial services on counties. 134 [*1814]



However, in 46th Circuit Trial Court v. Crawford County, 135 the Court revisited the issue and described strict limits which apply to this state power. 136 Citing Wayne Circuit Judges v. Wayne County, 137 a majority of the Court said:



The judicial power of this state is vested exclusively in 'one court of justice' . . . The Legislature may not abolish that court. Neither is it permissible for the Legislature to render the court inoperative by refusing financial support. . . . Thus, the judiciary has the inherent power to seek the funding necessary to sustain its ability to function serviceably in carrying out its constitutional responsibilities . . . On that basis, this Court held that Wayne County must appropriate funds for those positions . . . needed in the operation of the circuit court . . . . 138







However, the Crawford County majority did reject the 46th Circuit Court's claim for funding for improved staff salaries. 139 In so doing, a plurality of the Court adopted the following definition of "serviceable," which had earlier been approved in Wayne County Board of Commissioners: "A serviceable level is not met when the failure to fund eliminates the function or creates an emergency immediately threatening the existence of the function. A serviceable level is not the optimal level. A function funded at a serviceable level will be carried out in a barely adequate manner . . . ." 140



Following the decision in Grand Traverse County, the Legislature again took up the issue of court reform and, in addition to merging Detroit Recorder's Court and the Third Circuit Court, adopted the partial funding plan of Public Act 374 of 1996. 141 The funding provisions of [*1815] P.A. No. 374 are clearly far less than the promise made to Wayne County to induce its conversion to home rule. The impact of this law on Wayne County has been described:



Although the General Fund dollars received by the county for court operations will be eliminated, the new State formula and the hold harmless provision will allow Wayne County for the first two years to receive the same amount of State funds. . . .







Currently, Wayne County is the funding unit for both the Third Circuit Court and the Recorder's Court; therefore . . . the county will be responsible for any additional expense not paid for by the State. 142







Consequently, as of fiscal year 2003-2004, Wayne County was expending approximately $ 21.62 million for the probate court and $ 128.38 million for the circuit court, up considerably from prior years. 143 the accumulated deficits in county funds which must be funded by the CEO's proposed 2007-2008 county budget, the largest parts of the deficit are attributable to the operations of the circuit court, the friend of the court and juvenile justice, for which state funding has been reduced. 144



The unique issue of how provisions of Wayne County's constitutionally based home-rule charter, which give binding effect to budget adoption, 145 and require centralized purchasing, 146 affect Wayne County's responsibility to provide judicial services, has not been authoritatively resolved. However, given the significant measure of local autonomy intended for the home-rule county by Article 7, Section 2, as well as the Governor's emphasis on public-resource saving through interagency cooperation, 147 it would seem, at the very least, that the County's appropriation for judicial services should be determined as appropriations for other County services are determined, and that provisions of the charter should govern the purchases necessary for judicial services in Wayne County. [*1816]



C. Within the County: Overlapping Programs



Not only is Wayne a home rule county, but most of its forty-three constituent municipalities are also home rule units of local government. County interests may come in conflict with those of a home-rule municipality in any of three ways:



1.Where the county offers a service in the territory of a municipality, which will displace a similar service program of the municipality;



2.Where conflicting ordinances are enacted by the County and by a municipality; and



3.Where the county chooses to locate one of its operations on county-owned land in the territory of a municipality, contrary to a municipal zoning ordinance.



D. Services Performed at the County Level



To facilitate regional cooperation and the saving of public resources, Con Con granted home rule counties authority "to adopt resolutions and ordinances relating to its [county-wide] concerns." 148 Thus, residents of home-rule cities within Wayne County are now subject to both the county's Article 7, Section 2 power, and a similarly phrased power granted to home-rule cities by Article 7, Section 22. 149



Since a particular service program performed by the county may address a concern of both the county and a city, conflicts between the county and a city can arise which are analogous to state-local conflicts where-for a city to prevail on the basis of its home-rule authority-the city must show that the matter in question is "of purely municipal concern." As Denver v. State 150 demonstrates, the question of whether a particular matter is of purely municipal concern, rather than of a county-wide or regional concern, presents a definitional question, and cities are rarely able to show that a matter is purely local. 151 With respect to potential conflicts between a service or function which the county [*1817] determines should be performed at the county level and a service program offered by a city, in addition to such protection as a city may claim under Article 7, Section 22:



A county charter . . . may provide for . . . the authority to perform at the county level any function or service not prohibited by law [including without limitation]: Police protection, fire protection, planning, zoning, education, health, welfare, recreation, water,sewer, waste disposal, transportation, abatement of air and water pollution, civil defense, and any other function or service necessary or beneficial to the public health, safety, and general welfare of the county. Powers granted solely by charter may not be exercised by the chartercounty in a local unit of government which is exercising a similar power without the consent of the local legislative body. The cost of any service . . . shall be charged to the local unit of government or area benefited by the service, unless it is rendered on a county-wide basis in which event the cost may be paid from the general fund of the county. 152







An earlier draft of what became M.C.L. section 45.515(c) reflected a desire on the part of legislators to foster greater regional cooperation by giving authority over alleged conflicts, not just to the council of a single locale, but to a majority of all such bodies in the county. 153 The earlier bill read:



Powers granted solely by charter may not be exercised in a local unit of government which is exercising a like power without either the consent of the local legislative body, or by the authorization of a majority of the city, village and township legislative bodies of the county approving the same. 154







However, in an opinion which seems clearly erroneous, the Attorney General held that this bill, if enacted, would constitute an "improper delegation of legislative authority." 155 He stated:



Under the Senate bill, the Legislature would authorize a charter county to provide certain services within the territory of a non



[*1818]



consenting home rule city upon approval of a majority of the legislative bodies of the county. The bill has the same frailty that the Michigan Supreme Court condemned in Arlan's Department Stores, Inc., v. Attorney General, 374 Mich. 70 (1964) where the Court struck down a statute that empowered boards of supervisors to permit the sale within the county of any or all of the prohibited commodities . . . the Court holding such a provision to be an improper delegation of legislative power. 156







In Arlan's Department Stores, Inc., v. Attorney General, 157 the court considered a state law requiring every store to close either on Saturday or Sunday, but which delegated power to the board of supervisors of each county to decide whether, or the extent to which, the state law would apply in its county. 158 The law was struck down, because, "while purporting to be a State law, it permits each county to change the State law to suit its own purposes." 159



Unlike the law at issue in Arlan's, however, the earlier version of what became M.C.L.A. section 45.515(c) did not in any way involve "an improper delegation of legislative power." 160 It was simply an attempt to provide a mechanism whereby local councils could themselves decide the fact question present in all such conflict situations of whether a displaced program of a city was of "purely municipal concern," or whether, instead, it had an unacceptable impact on issues which lay outside city boundaries, or was the type of program which should be handled uniformly throughout the county. 161



E. Economies of Scale



Given the present emphasis in Michigan on cost-effective government, and the fact that all levels of government in the county depend upon a common real property tax base, multi-jurisdictional programs aimed at saving the money of taxpayers have taken on an [*1819] importance of more than "purely local concern." Indeed, in her 2007 State of the State address, Governor Granholm said:



To bring new jobs here, we will continue to wage our war on waste and find new efficiencies that allow government to work better for less. . . . And our local partners must do the same. Michigan's counties, cities and villages, townships, and school districts all must do more to share and consolidate resources . . . . Tonight I am proposing a change to revenue-sharing payments to local governments. Cities and townships that want to see their revenue sharing increase this year will need to show us they are sharing services or consolidating with other units of government to save taxpayers money . . . . Consolidation of services makes sense, and it saves money. And whether it's by using a carrot or a stick, we are going to make it happen. 162







In light of this, a service or regulatory program performed at the county level which promises economies of scale, and a resultant saving of aggregate public resources, should prevail over a municipality's claim that a program which lacks economies of scale is of purely municipal concern. 163 Thus, to further the Governor's fight to "find new efficiencies that allow government to work better for less," 164 and to end uncertainty about whether, or the extent to which, more cost-effective programs performed at the county level take precedence over similar municipal programs, M.C.L.A. section 45.515(c) should be amended to give priority to a county program where it is determined that the county program will save aggregate tax dollars. One possibility would be to adopt now the earlier version of M.C.L.A. section 45.514(c) which was wrongly rejected by the AG as "an unlawful delegation of legislative authority." 165 An even better possibility might be to add, after the second sentence of M.C.L.A. section 45.514(c), this new language: [*1820]



Notwithstanding any other law or charter provision, if it is determined by the county that a service or regulatory program of local unit(s) could be performed at the county level for the same population at a substantial reduction in the aggregate expenditure of public funds, such program of the local unit is not of purely local concern within the meaning of Const 1963, Art 7, Sec 22; thus, a county ordinance to perform such function at the county level will preempt in the event of conflict with a local program. 166







F. City Regulation of County Operation



Finally, a county may come in conflict with a constituent municipality when that municipality attempts to apply its regulatory ordinance against a county operation located in the municipality. Recently, a question arose in Wayne County as to whether a "concrete-crushing" operation could be conducted on property owned by the County in Huron Township without the special use permit required by the Township's ordinance. Not finding any indication of legislative intent to exempt this activity from the local code, the county discontinued the operation. In so doing, it acted consistently with the conflict resolution test adopted in Dearden v. Detroit. 167



In Dearden, the State Department of Corrections (DOC) wanted to operate a building that it had rented from the Archdiocese as a half-way house; but the City of Detroit refused to grant an occupancy permit, finding that the use was not permitted by the City's zoning ordinance. 168 In finding for the DOC, the Michigan Supreme Court made these presently pertinent comments:



In DeGaynor v Dickinson County Memorial Hospital Board of Trustees, the Court held that a county hospital was subject to a municipal zoning ordinance. The Court reached this conclusion because it could find no exception in the zoning enabling act for



[*1821]



county hospitals . . . The Court in Renshaw v Coldwater Housing Commission, held that a municipality's housing commission was not subject to the municipality's zoning ordinance. . . . We hold today that the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances. 169







However, Dearden and its progeny leave the question unsettled when legislative intent cannot be discerned. 170 In such a case, our Court should adopt the rule followed elsewhere, as follows:



Municipal zoning regulations or restrictions usually do not apply to the state or any of its subdivisions or agencies, unless the Legislature has clearly manifested a contrary intent. Thus, properties and the uses thereof may be immune or exempt from the operation of municipal zoning regulations where owned or controlled by counties. 171







V. Conclusion



Considering the leadership failures and financial problems which had long plagued Wayne County and which led to the establishment of the Wayne County Charter Commission, the county's experience in the past twenty-five years with a plan of government headed by a chief executive has been a notable success: the Home Rule County has a recognized leader and, for the most part, has managed to keep its expenditures within its revenues.



However, home rule in Wayne County has attracted more and stronger opponents of true home rule than was experienced in the early years of city home rule. As a result, some of the efficiencies and cost-effectiveness, which should accrue to a community from the classic form of executive government headed by a chief executive, and by a commission which stays focused on the legislative powers of the purse and of checks and balances, have not been fully realized.



One thing does seem clear; in this era of scarce public resources, the Charter County of Wayne is uniquely positioned to foster the economies of scale (as facilitator of inter-local cooperation among the forty-three municipalities within the 623 square miles which comprise Wayne [*1822] County), 172 which Governor Granholm has so urgently called for. 173 Thus fuller development of the home rule county's capacity to accomplish such economies should be a top priority not only on the county's agenda, but also on the Legislature's agenda. This will require additional legislation, but it is a matter which deserves everyone's attention.



As Macomb County begins the process of converting to home-rule status under Article 7, Section 2 of the Michigan Constitution, hopefully this review of Wayne County's experience as a charter county over the last twenty-five years, and these thoughts and concerns about ways to strengthen this form of county government, will be helpful to both state and county officials.



Legal Topics:



For related research and practice materials, see the following legal topics:

Constitutional Law > State Constitutional Operation

Governments > Local Governments > General Overview

Governments > State & Territorial Governments > Relations With Governments





FOOTNOTES:





n1 Simplifying County Business; Fighting the White Plague, Citizens Research Council of Michigan, Public Business No. 58, Feb. 15, 1921, at 2, available at http://www.crcmich.org/PUBLICAT/1920s/1921/pb58.pdf (last visited June 11, 2009) (emphasis added).



n2 Id. at 3.



n3 Id. at 5 (emphasis added).



n4 A Review of the Effects of Home Rule on Wayne County Government, Citizens Research Council of Michigan, Report No. 286, Sept. 1986, available at http://www.crcmich.org/PUBLICAT/1980s/1987/rpt286.pdf (last visited June 11, 2009).



n5 Id. at 3.



n6 D. Hale Brake, County Home Rule, in MICH. COURTHOUSE REV. (Mich. State Ass't of Supervisors 1963).



n7 Con Con Record 1094 (on file with author) [hereinafter Record].



n8 Id. at 1098. Delegate Ford, also from Wayne County, demurred: "I have no particular affection for the concept that all county officials have a vested interest that has to be protected . . . But there are 2 county positions that have a tradition and a history behind them that make me . . . very apprehensive about tinkering with their manner of selection. That is the prosecutor and the sheriff . . . ." Id. at 1101.



n9 See id. at 1115-16, 1133.



n10 Id. at 1133.



n11 Id. at 1115-16.



n12 Record, supra note 7, at 1116.



n13 Id. at 1111.



n14 See id. at 1111. "The purpose and object of the proposed charter, if adopted, is to completely supersede the present form of city government with all its officers and to substitute a new form of government in which the power of the city government will be vested in new officers . . . The right to frame and adopt a charter for the city is conferred by the Constitution." Streat v. Vermilya, 268 Mich. 1, 6 (1934).



n15 Record, supra note 7.



n16 MICH. CONST. 1963 art. 7, § 2.



n17 See MICH. COMP. LAWS ANN. § 117.3 (2006) ("Each city charter shall provide for . . . (a) The election . . . of a body vested with legislative power, and for the election or appointment of a clerk, a treasurer, an assessor or board of assessors, a board of review, and other officers considered necessary. . . . Elections may be by a partisan, nonpartisan, or preferential ballot, or by any other legal method of voting . . . (b) The nomination of elective officers by partisan or nonpartisan primary, by petition, or by convention . . . (e) The establishment of 1 or more wards, and if the members of the city's legislative body are chosen by wards, for equal representation for each ward in the legislative body . . . .") Id.



n18 See MICH. COMP. LAWS ANN. § 45.514 (2006) ("A county charter adopted under this act shall provide for . . . (b) . . . the partisan election of members of the legislative body from single member districts . . . c) The partisan election of a sheriff, a prosecuting attorney, a county clerk, a county treasurer, and a register of deeds . . . .") Id.



n19 1966 P.A. No. 293.



n20 MICH. COMP. LAWS ANN. § 45.554(4) (West 2009).



n21 Michigan Municipal Review, January, 1967. The Hon. John D. O'Hair, who served as the Charter County's first Corporation Counsel, made a similar observation: "Increase the effectiveness and accountability of the county executive by expressly empowering him/her to appoint the heads of the various county commissions, boards and agencies who serve at the pleasure of the county executive." Letter from Hon. John D. O'Hair (Dec. 6, 2006) (on file with author).



n22 Wayne County's Charter took effect January 1, 1983. Still, none of Michigan's other eighty three counties has adopted a charter.



n23 See Home Rule in Wayne County: Council Comment No. 968, Citizens Research Council of Mich. (CRCM), Nov. 1987, available at http://www.crcmich.org/PUBLICAT-/1980s/1987/cc0968.pdfg (last visited May 25, 2009). See also A Review of Effects of Home Rule on Wayne County Government, Citizens Research Council of Mich. (CRCM), Sept. 1986, available at http://www.crcmich.org/PUBLICAT-/1980s/1987/rpt286.pdf (last visited May 25, 2009).



n24 Earl M. Ryan, NAT'L CIVIC REV., Apr. 1980, at 208 (emphasis added).



n25 See id.



n26 Report of Wayne County-Detroit Courts, Aug. 1979, at 2 (Library of Michigan).



n27 Id. at 6-7.



n28 Id. at 4.



n29 Id.



n30 Id.



n31 Id.



n32 Report of Wayne County-Detroit Courts, supra note 26, at 2.



n33 Susan Taylor Martin & John F. Nehman, 3,000 Likely to Miss Next County Pay, DETROIT NEWS, Sept. 14, 1979.



n34 Can Brickley Pull Agreement Out of a Chaotic Task Force on Reorganization?, DETROIT FREE PRESS, Sept. 14, 1979 (emphasis added).



n35 Eric Sharp, State-County Split Stymies Task Force: Amid the Squabbling Members Agree to Draft Plan by Oct. 15, DETROIT FREE PRESS, Sept. 14, 1979.



n36 See discussion, supra note 14.



n37 Frank J. Kelley, Attorney General, Opinion No. 5587, Oct. 26, 1979.



n38 See discussion, supra note 17.



n39 The opinion is silent on the term "general law" as used in the constitutional home rule jurisprudence.



n40 845 P.2d 150 (N.M. 1992).



n41 Id. at 155.



n42 662 A.2d 1281 (Conn. 1995).



n43 Id. at 1293 (emphasis added).



n44 576 P.2d 1204 (Or. 1978).



n45 Id. at 1215.



n46 Id. (emphasis added).



n47 Windham, 662 A.2d at 1294 (emphasis added).



n48 693 N.E.2d 212 (Ohio 1998).



n49 See id. at 218.



n50 MICH. CONST. art. VII, § 34.



n51 Section 20 of 1966 P.A. No. 293 was recorded as M.C.L.A. § 45.520. That section states that "each incumbent officer having been elected prior to the adoption of the charter and whose office has not been abolished or duties transferred to another office or department by the charter, for all purposes, shall be deemed to be a home rule county officer duly elected and qualified."



n52 MICH. CONST. art. VII, § 2; MICH. COMP. LAWS ANN. § 45.520 (West 2006).



n53 See Kelley, supra note 37.



n54 Despite Con Con's intent that the scope of county home rule should be the same as municipal home rule, the Attorney General effectively ruled that the County Charter could not eliminate the elective status of the county treasurer, even though Detroit's 1973 charter did in fact eliminate the elective status of the city treasurer.



n55 See MICH. CONST. 1963 art. VII, § 2.



n56 George E. Ward, A Reformed Wayne County: The Home Rule Charter, 1981 DET. C.L. REV. 1013 n.2 (1981).



n57 See 1980 Mich. Pub. Acts no. 7. Unfortunately, there is no Michigan counterpart to the decision of the Kansas Supreme Court in Tomasic v. Unified Gov't of Wyandotte County, 955 P.2d 1136 (Kan. 1998), which, in interpreting a similar state-granted local option, upheld the elimination of elective status for the county clerk, county treasurer, public administrator, and county surveyor, saying: "the voters simply exercised the authority granted to them [by the] . . . local option." Id. at 1151.



n58 See 1980 Mich. Pub. Acts no. 7.



n59 See Summary of Sen. Bill 652, enacted 1980 Mich. Pub. Acts no. 7.



n60 See Wayne County Ballot Issue: County Home Rule, Citizens Research Council of Mich. (CRCM), July 1980 (on file with author).



n61 Minutes and Committee Reports of the Wayne County Charter Commission referred to herein are on deposit at the Burton Room of the Detroit Public Library.



n62 Wayne County Charter Commission Minutes of Meeting (Feb. 10, 1981) (on file in the Burton Room of Detroit Public Library).



n63 Wayne County Charter Commission Minutes of Meeting (Mar. 12, 1981) (on file in the Burton Room of Detroit Public Library).



n64 Id.



n65 Id.



n66 Id.



n67 Wayne County Charter Commission Minutes of Meeting (Mar. 26, 1981) (on file in the Burton Room of Detroit Public Library).



n68 Id.



n69 Wayne County Charter Commission Minutes of Meeting (Mar. 31, 1981) (on file in the Burton Room of Detroit Public Library).



n70 Id.



n71 Id. See MICH. CONST. 1963 art. VI, § 14.



n72 Lucas, infra note 108.



n73 Wayne County Charter § 4.111 (1983).



n74 Id. at § 4.113. See Home Rule Charter for Wayne County with Compiler's Comments to Dec, 20, 2007, 25-26 [hereinafter Compiler's Comments]. Charter § 4.113 was authorized by M.C.L. section 45.514(1)(d) which expressly provides for the continuance, discontinuance, or transfer of duties of "all existing county offices, boards, commissions, and departments," including both those established by law and those established by County Commission. This section was amended in 1992 in reaction to the second County Executive's attempt to use the Executive Reorganization Plan (ERP) to take the Commission's power to confirm certain executive appointments under section 3.115(4). Id. The amendment appears to have been "pay-back." As a result of the amendment, the ERP is given a limited life which, depending on the CEO and the Commission's relationship with the CEO at a particular time, could deprive the CEO of a desirable measure of organizational discretion. See Wayne County Charter, § 4.113 comments (6th ed.) (on file with author).



n75 Ward, supra note 56, at 1021.



n76 "The revenue estimate set forth in the CEO's proposed budget is made binding on the County Commission, and an amendment which would increase an expenditure must include an amendment that would decrease another expenditure by an equal amount or raise revenue of an equal amount." Wayne County Charter § 5.134 (1983). The CEO is provided a line item veto. Id. at § 4.112(7). "The CEO is required to specify an expenditure procedure to assure that no funds are spent contrary to an appropriations measure and that no money is spent unless an unencumbered appropriation is available for the purpose." Id. at § 5.141. An appropriation is not a mandate to spend. Id. "After budget adoption, if the CEO certifies to the Commission a reduction in estimated revenues of any type, the Commission must reduce appropriations to avoid the deficit. If the Commission fails to amend the appropriation ordinance, the requested appropriation reduction submitted by the CEO takes effect. Id. at § 5.146. "The Chief Financial Officer, who heads the Department of Management and Budget (DMB), shall be appointed by the CEO and serve at the pleasure of the CEO." Id. at § 4.331. "Approval by the Commission of the appointment is not required. The division [of purchasing], which is within the DMB, has powers and duties to . . . manage and control all purchasing activities of the County." Id. at § 4.334.



n77 Report of Tax and Finance Committee of Wayne County Charter Commission, 1-2 (on file in Burton Room of Detroit Public Library). The Committee's conclusion was based upon the Headlee Amendment. See MICH. CONST. 1963 art. IX, § 29. It states that "a new activity . . . shall not be required by the Legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs." Id. Additionally, "a county charter adopted under this act shall provide for all of the following: . . . (r) An annual audit by an independent certified public accountant of all county funds." MICH. COMP. LAWS ANN. § 45.514(1)(r) (West 1983). Given the state pressure put upon Wayne County by the State to convert to home rule, the Committee concluded that reimbursement of audit expenses is required by Section 29's plain text. See Report on Tax and Finance, supra.



n78 Wayne County Charter § 8.119 (1983).



n79 MICH. COMP. LAWS ANN. § 45.511a(5) (West 1980).



In the strong-executive form of local government, the elected executive is given almost total administrative authority and a clear, wide range of political independence, with the power to appoint and dismiss department heads. In this system, the executive prepares and administers the budget, although that budget often must be approved by the legislative body. The government of New York City uses the strong-executive form of government, as, indeed, do most major American cities.



GEORGE C. EDWARDS, ROBERT L. LINEBERRY, & MARTIN P. WATTENBERG, GOVERNMENT IN AMERICA 677-678 (Pearson Education 2006).



n80 Wayne County Charter § 3.115 (1983).



n81 Wayne County Charter § 3.118 (1983) (emphasis added).



n82 Compiler's Comments, supra note 74, § 3.118.



n83 Id. at § 3.111.



n84 Although an express duty has not been imposed on the County Corporation Counsel like that of the Attorney General under M.C.L. Section 14.32, the Charter does clearly state that "the department [of Corporation Counsel] shall provide legal services to the CEO, and all County agencies, and represent the County in all civil actions in which the County is a party." Wayne County Charter § 4.312 (1983). Thus, prior to an authoritative court ruling, no officer other than the Corporation Counsel is in a position to provide an authoritative interpretation of the County's Charter and ordinances.



n85 116 F. 131 (8th Cir. 1902).



n86 Id. at 136.



n87 63 So. 3 (Fla. 1913).



n88 Id. at 6.



n89 5 U.S. 137 (1803).



n90 "My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." Letter from Thomas Jefferson to Spencer Roane (Sept. 6, 1819).



n91 See Marbury, 5 U.S. at 137.



n92 Cf. MICH. CONST. art. III, § 2 (1963) ("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.").



n93 Compiler's Comment, supra note 74, § 4.112.



n94 242 N.W.2d 538 (Mich. Ct. App. 1976).



n95 Id. at 539.



n96 See MICH. CONST. 1963 art. VII, § 2.



n97 See Ward, supra note 56, at 1013 n.4 ("As the Miller Canfield law firm advised the Charter Commission: 'had the Legislature intended in fact to limit charter commission authority with respect to the powers and duties of these [charter county] officers . . . the legislative concern manifested for the Road Commission under . . . [1980 P.A. No. 7] and for the sheriff, prosecuting attorney, county clerk, county treasurer and register of deeds under [the Optional Form of County government Act] would have been as well manifested for these same [charter county] elected officers . . . .'").



n98 1980 Mich. Pub. Acts no. 7.



n99 286 N.W.2d 62, 67 (Mich. Ct. App. 1979) (emphasis added).



n100 See Wayne County Charter § 5.134(b) (1983).



n101 Id. at § 4.272 (1983) (emphasis added).



n102 See discussion, supra note 77, at 3.



n103 Wayne County Charter § § 7.11(a)(4), (b) (1983) (emphasis added).



n104 381 N.W.2d 806 (Mich. Ct. App. 1985).



n105 MICH. COMP. LAWS ANN. § 45.516 (West 1967) (emphasis added).



n106 Wayne County Charter § 2.212 (1983).



n107 Compiler's Comment, supra note 74, § 2.212.



n108 Lucas, 381 N.W.2d at 809 (emphasis added).



n109 See Garrett v. Wayne Co., Unpublished Op. No. 06-635265-PZ (Wayne County Circuit Court).



n110 The Commission's staff comment to section 4.112 of the Wayne County Charter erroneously claims that Charter sections, which create the offices of County Clerk and of the other elected officials, "acknowledge and accede to their Constitutional and statutory powers," and that the Clerk has "certain powers and duties which are not subject to revision," even by the Legislature. Compiler's Comment, supra note 74, § 4.112. This position is the very position which the Clerk asserted against the Commission when the Commission attempted to exercise its express power under section 3.115(10) to appoint and supervise its own clerk. Garrett, Unpublished Op. No. 06-635265-PZ.



n111 See discussion, infra note 112.



n112 D-WCCMAB v. Ficano, Unpublished Op. No. 03-341650-CZ (Wayne County Circuit Court).



n113 The Proposed Wayne County Charter, Citizens Research Council of Mich. (CRCM), Sept. 1980 (on file with author).



n114 Report to the County Executive - Elect on Reorganization of Executive Branch of Wayne County Government, Dec. 15, 1982, 15-17 (on file with author). As of February 29, 1984, these obligations amounted to $ 126.9 million, $ 100.9 million of which was for the medical care of indigent County residents ($ 66.3 million) and the mental health and child care of County residents in State facilities ($ 34.6 million). Ernst & Whinny Audit Report for FY 1984 (on file with author).



n115 See Ernst & Whinney Audit Report for FY 1984 (on file with author).



n116 See Ernst & Whinney Audit Report for FY 1987 (on file with author).



n117 See County of Wayne Five Year Recovery Plan, June 1988 (on file with author).



n118 This power has been repeatedly exercised by each of the County's CEOs. Statements of Richard Walker, Deputy Chief Financial Officer, Budget & Planning, Wayne County.



n119 Letter from Probate Judge Milton Mack, Wayne County, Michigan (on file with author).



n120 Id.



n121 MICH. COMP. LAWS ANN. § 45.514(1)(d) (1982). This section is consistent with the "central object of home rule" in our constitutional arrangement, "to allow the people of the locality to decide upon the organization of their government and the scope of its powers under its charter..." La Grande, 576 P.2d at 1215.



n122 See generally Jackson v. New Ctr. Cmty. Mental Health Services, 404 N.W.2d 688 (Mich. Ct. App. 1987); Applebaum v. Dep't of Pub. Health, 333 N.W.2d 226 (Mich. Ct. App. 1983).



n123 See Wayne County Bd. of Comm'rs v. Wayne County Airport Auth., 658 N.W.2d 804, 812 (Mich. Ct. App. 2002).



n124 Id.



n125 A good place to start the process of reducing the influence of special-interest campaign contributions is with National Civic League's Local Campaign Finance Reform booklet which offers the following model conflict-of-interest provision for charter government:



Acceptance or receipt [directly or indirectly] by a candidate or elected official to sup- port his or her candidacy of anything of value in excess of [a specified value] . . . shall create a conflict of interest with regard to that official's vote or participation on any issue or matter coming before a county agency involving a benefit to the contributing person or related entity.



LOCAL CAMPAIGN FINANCE REFORM, CASE STUDIES, INNOVATIONS AND MODEL LEGISLATION 40 (1st ed., 1998). See also, NATIONAL CIVIC LEAGUE, MODEL CITY CHARTER (8th ed. 1983); Michael A. Lawrence, Final Report to Michigan Law Revision Commission on the Proposed Governmental Ethics Act of 1999, available at http://council.Legislature.mi.gov/files/mlrc/1998/finalreport.html (last visited Jun. 23, 2009) (concluding that the conflict-of-interest and revolving-door provisions of Michigan law are among weakest of any state).



n126 See supra note 26 and accompanying text.



n127 See 1980 Mich. Pub. Acts No. 438.



(1) The Legislature shall appropriate sufficient funds in order to fund: (a) At least 20% of all court operational expenses in the state fiscal year beginning October 1, 1983. (b) At least 40% of all court operational expenses in the state fiscal year beginning October 1, 1984. (c) At least 60% of all court operational expenses in the state fiscal year beginning October 1, 1985. (d) At least 80% of all court operational expenses in the state fiscal year beginning October 1, 1986. (e) At least 100% of all court operational expenses in the state fiscal year beginning October 1, 1988.



Id.



n128 See Frank J. Kelley, Attorney General, Opinion No. 6125, Feb. 10, 1983.



n129 538 N.W.2d 1 (Mich. 1995).



n130 Id. at 5.



n131 MICH. CONST. art IX, § 1 ("The Legislature shall impose taxes sufficient with other revenues to pay the expenses of state government . . . .").



n132 See discussion, supra note 26.



n133 Grand Traverse, 538 N.W.2d at 6-7.



n134 Id. While denying relief, the Supreme Court in Grand Traverse County acknowledged the problem caused to county government by the State's imposition of this unfunded judicial mandate, and concluded by saying:



Until the Legislature, the counties, and the courts arrive at a plan for more efficient and effective court funding, difficulties like that presented in this case will arise. Indeed, the numerous cases addressing conflicts about court funding, and the controversy surrounding the instant case, demonstrate the need for continuing efforts by the judicial, legislative, and executive branches to reform the state's system of court funding.



Id. at 10.



n135 719 N.W.2d 553 (Mich. 2006).



n136 Id. at 561-62.



n137 190 N.W.2d 228 (Mich. 1971).



n138 Id. (internal citations omitted). Wayne County is, of course, not the Legislature. Yet, no explanation was given for the Court's seeming inconsistency between saying that it is not "permissible for the Legislature" to deny court funding, and then saying "on that basis, Wayne County must appropriate funds . . . needed in the operation of the Circuit Court . . . ." Id.



n139 719 N.W.2d at 566-67.



n140 Cahalan v. Wayne County Bd. of Comm'rs, 286 N.W.2d 62, 67 (Mich. Ct. App. 1979).



n141 See Bill Bowerman, Court Reorganization and Recent Litigation, SENATE FISCAL AGENCY (Jan./Feb. 1998).



n142 SFA Bill Analysis for H.B. 5158 (July 19, 1996), pp. 15-16 (on file with author).



n143 Wayne County, Michigan, 2003-2004 Budget, pp. 6.10 and 17.8.



n144 Id.



n145 Wayne County Charter § 5.134(b) (1983).



n146 Wayne County Charter § 4.334 (1983).



n147 See Report of Wayne County-Detroit Courts, supra note 26 and accompanying text.



n148 MICH. CONST. art VII, § 2.



n149 See MICH. CONST. art VII, § 22.



n150 788 P.2d 764 (Colo. 1990).



n151 See id. at 767 (holding that matters of "mixed concern," as distinguished from "purely municipal concern," are subject to the law of the higher unit of government). See also Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992) (holding that a local ban on drilling oil wells within the city was not to be an exclusively local concern); East Greenwich v. O'Neil, 617 A.2d 104 (R.I. 1992) (holding an ordinance regulating high voltage electric power transmission lines within the city to not be of purely local concern).



n152 MICH. COMP. LAWS ANN. § 45.515(c) (West 2009) (emphasis added).



n153 Mich. Att'y Gen. Op. No. 4523 (1966).



n154 Id. (emphasis added).



n155 Id.



n156 Id. (emphasis added).



n157 130 N.W.2d 892 (Mich. 1964).



n158 Id. at 893-94.



n159 Id. at 895.



n160 Id.



n161 The revisions of the bill were disapproved by the attorney general. Mich. Att'y Gen. Op., supra note 153. A strong role for the county home rule is consistent with the position taken by Prof. David Barron who argues that the solution to excessive fragmentation in an area is a reformulated concept of home rule with powers, which are coextensive with the scope of the area's problems. David Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003).



n162 Jennifer Granholm, Governor of Michigan, 2007 State of the State Address: Our Moment, Our Choice: Investing in Michigan's People (Feb. 6, 2007) (emphasis added).



n163 Cf. Seto v. Tri-County Metro Transp., 814 P.2d 1060 (Ore. 1961). The Court rejected objections by constituent municipalities that their constitutional home-rule authority was infringed by a tri-county public agency which provided fixed rail transportation. Id. at 1061. The court found that the service was of more than purely local concern, holding that the project "has significant regional . . . economic and social consequences." Id. at 1065.



n164 Granholm, supra note 162.



n165 See supra note 155 and accompanying text.



n166 It must be remembered that, whenever the County Commission enacts an ordinance, representatives from all constituent municipalities participate in that legislative action. Wayne County Charter § § 2.111, 3.111 (1983). Thus, the rationale of Garcia v. San Antonio Metro, 469 U.S. 528 (1985), for holding that a federal law pre-empted a state law, should apply here: "the principal and basic limit . . . is that inherent in all congressional action - the built-in restraints that our system provides through state participation in federal govern-mental action. The political process ensures that laws that unduly burden the States will not be promulgated." Id. at 1020.



n167 269 N.W.2d 139 (Mich. 1978).



n168 Id. at 140.



n169 Id. at 141-42 (internal citations omitted) (emphasis added).



n170 See id.



n171 MCQUILLIN, MUNICIPAL CORPORATIONS 8, 37 (3d. ed. 1976) (emphasis added).



n172 See My County, availible at http://www.waynecounty.com/mycounty-/mycounty.aspx (last visited Jun. 23, 2009).



n173 See Granholm, supra note 162 and accompanying text.