Plaintiffs, who commenced this original action
We hold that plaintiffs' Headlee violation claim regarding the requirement of Act 90 that a county continue to employ airport employees who choose not to transfer to the airport authority is not ripe for adjudication and thus do not decide this issue. Plaintiffs may raise this claim in future litigation should the number of airport employees who choose not to transfer prove to be more than de minimis. With regard to plaintiffs' claim that the employee pensions constitute an unfunded new activity under Headlee, we observe that under Act 90, subsection 117(1)(d), the airport authority assumes, and is responsible for paying, the pensions. Finally, we hold that plaintiffs have not met their burden of demonstrating that Act 90 is unconstitutional as alleged in the remaining counts of their amended complaint. Accordingly, we grant summary disposition in favor of defendants and dismiss plaintiffs' claims, except for the Headlee claim relating to the transferring employees, with prejudice.
Signed by the Governor in March of 2002, Act 90 amended the Michigan Aeronautics Code, adding chapter VIA, "the public airport authority act," M.C.L. § 259.108 to 259.125c. In part, Act 90 created an airport authority to manage and oversee the Detroit Metropolitan Airport (Metro Airport) and Willow Run Airport.
In 1927, 1927 PA 182, gave Wayne County the authority to acquire land for Metro Airport, which was established in 1928. Before the enactment of Act 90, the county operated Metro Airport under the authority of the Michigan Aeronautics Code, M.C.L. § 259.1 et seq.
In the 1990s, allegations of mismanagement of Metro Airport arose. In 1999, the state Legislature created a five-member joint committee
As a result of that report, the Michigan Legislature introduced bills to address the mismanagement issues. Before that legislation was passed, the county executive, the Governor, and business leaders reportedly agreed on the creation of a new authority to operate the airport.
Act 90 adds a chapter, the "public airport authority act," to the Michigan Aeronautics Code. As indicated in the revised title of the act, Act 90 provides for the incorporation of "public airport authorities" (PAAs) and provides for the transfer of airport management to PAAs. PAAs automatically will be created for only "qualified airports," which are those with ten million or more enplanements
A PAA, in turn, is governed by a board that consists of seven members, subsections
Once a PAA is created, the local government that owns the airport must not impede the PAA's exercise of powers, must refrain from selling or transferring airport facilities without the PAA's consent, must cure any defects in title to airport facilities, must grant any necessary easements or licenses, and must maintain the airport roads, subsection 118(3). Further, if the PAA so requests, the local government must provide transitional services regarding the airport operation until the PAA assumes those services; the PAA will pay the government for those services, subsection 118(4). When operational jurisdiction has been transferred to a PAA, the legislative body of the local government may, with the PAA's consent, pledge its full faith and credit for the obligations of the PAA, advance funds to the PAA, and grant or convey real or personal property to the PAA, subsection 125(1).
Finally, § 125c is a severability clause and provides:
In August of 2002, the Federal Aviation Administration (FAA) issued an airport operating certificate to the WCAA, thus setting in motion the "approval date"
Under Act 90, the transfer of authority from the county to the WCAA may not impair any contracts with airlines, vendors, tenants, bondholders, or certain other parties, subsection 118(1). Upon the transfer, the WCAA assumed all further costs and responsibility arising from the control of the airport, "except as otherwise required under obligations retained by the local government under this chapter or as otherwise agreed by the local government." Act 90, subsection 118(2).
Once the transfer occurred, county employees working at Metro Airport could choose to transfer to the WCAA for employment. Those employees who choose not to transfer to the WCAA "shall be reassigned" within the county. For one year, the county may not reduce the pay or benefits of any county employee into whose position a county employee who was previously employed at the airport is reassigned. Act 90, subsection 119(2). The parties dispute the number of county employees who work at Metro and who have declined to transfer to the WCAA. Defendants claim that the number is two; plaintiffs claim that the number ultimately could be as high as seven hundred given that employees have one year in which to make their decision.
The Federal Suit
Meanwhile, on April 22, 2002, plaintiffs
The Instant Suit
On May 24, 2002, plaintiffs filed the instant original action in this Court, Docket No. 241521. In plaintiffs' amended complaint, they allege: the transfer of authority will impair the county's contractual obligations to bondholders contrary to the state and federal constitutions (count I);
Defendant Raymond Wojtowicz, the Wayne County Treasurer, filed a cross-complaint on June 28, 2002, Docket No. 242406, seeking in part a declaration regarding the procedures for the transfer of money and assets pursuant to Act 90. Wojtowicz alleges that the instant suit challenges not only Act 90, but his right to transfer money and assets to the WCAA (Cross Complaint, ¶ 11). Wojtowicz states that he faces the potential of civil and criminal sanctions if he transfers assets to the WCAA in the event that any of the alleged defects are established in the instant litigation (Cross-Complaint, ¶ 12).
Expedited Proceedings in this Court
Pursuant to Act 90's mandate, this Court proceeded to give expedited consideration to the cases, which it consolidated. In the first seven weeks the cases were pending, the parties filed a dozen motions. The Court thereafter ordered that the cases proceed to a full hearing and held a status conference on August 8, 2002. On that date, the Court issued a scheduling order, with oral argument to occur on September 24, 2002. The Court held an additional status conference on September 3, 2002.
In the interim, on August 19, 2002, the Governor sent an executive message to our Supreme Court, requesting it to authorize this Court to certify the questions raised in the instant litigation. The Supreme Court thereafter issued an order directing this Court to accelerate its briefing and oral argument schedule in order to deliver its opinion no later than September 24, 2002. In re Executive Message from the Governor, 467 Mich. 1209, 651 N.W.2d 747 (2002).
This action invokes myriad standards of review. Plaintiffs have asked this Court to rule on the constitutionality of Act 90. Review of the constitutionality of a statute presents a question of law. Tolksdorf v. Griffith, 464 Mich. 1, 5, 626 N.W.2d 163 (2001). A party challenging the facial constitutionality of a statute must establish that no circumstances exist under which it would be valid. Taylor v. Gate Pharmaceuticals, 248 Mich.App. 472, 477, 639 N.W.2d 45 (2001), lv gtd 466 Mich. 889, 649 N.W.2d 72 (2002). "`The fact that the ... [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient....'" Council of Organizations & Others for Ed. About
The parties have filed cross-motions for summary disposition under MCR 2.116. Defendants have raised MCR 2.116(C)(8), which tests the sufficiency of the plaintiff's claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Koenig v. South Haven, 460 Mich. 667, 674, 597 N.W.2d 99 (1999). The court must grant the motion if no factual development could justify the plaintiff's claim for relief. Id.
The parties likewise rely on MCR 2.116(C)(10). In deciding a motion pursuant to MCR 2.116(C)(10), we consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 119-120, 597 N.W.2d 817 (1999). Where the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Id. at 120, 597 N.W.2d 817. A litigant's mere pledge to establish at trial that a genuine issue of material fact exists is not sufficient to overcome summary disposition. Id.
The parties have raised interesting issues regarding whether plaintiffs have the legal capacity to sue, whether plaintiffs have standing on each issue,
In count I of their amended complaint, plaintiffs assert that the transfer of authority to the WCAA will impair Wayne County's obligations to bondholders, which is contrary to the federal and state constitutions. We disagree.
Plaintiffs contend that the commission has enacted ordinances to borrow funds to improve the facilities at Metro Airport and that the funds are to be repaid through the "revenues produced by the County's operation and management of [Metro and Willow Run] Airports." The county thereafter issued municipal bonds, which remain outstanding. Plaintiffs assert that a condition
In arguing that Act 90 is unconstitutional, plaintiffs rely on the following provision: "No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted." Const. 1963, art. 1, § 10 (emphasis supplied). See also U.S. Const., art. I, § 10. Plaintiffs allege that Act 90 will interfere with the county's obligations under contract in two ways: (1) it will cause a breach of the county's commitment to the bondholders because the county no longer will have control over the revenues that are the primary source of repayment for the bonds and (2) it will cause the county to breach its pledge not to sell, transfer, assign, or otherwise dispose of the property while the bonds are outstanding (Amended Complaint, p. 15, ¶ 54). We begin, however, with the presumption that the legislation is constitutional. Ray Twp. v. B & BS Gun Club, 226 Mich.App. 724, 728, 575 N.W.2d 63 (1997). Thus, plaintiffs have the burden of proving that Act 90 violates the constitution.
In examining Contract Clause claims, this Court has adopted the federal balancing approach, which weighs the extent of the impairment on the rights and obligations of the contracting parties against the state's police power to regulate in the public interest. Blue Cross & Blue Shield of Michigan v. Governor, 422 Mich. 1, 21, 367 N.W.2d 1 (1985). It requires courts to undertake the following analysis:
Legislation regarding the rights and responsibilities of contracting parties must be based on reasonable conditions and serve a legitimate public purpose. Ludington & N. R. Co. v. Epworth Assembly, 188 Mich.App. 25, 41, 468 N.W.2d 884 (1991). One aim of Act 90 is the improved operation of Michigan's airports, which qualifies as a legitimate public purpose. In its specific application here, Act 90 removed management control of Metro Airport from the county (and the commission) and placed control with the WCAA. Given plaintiffs' concession that Metro Airport had been poorly managed in the past,
Plaintiffs argue that the transfer to the authority by way of §§ 117 and 118 of Act 90 impairs their contract with the bondholders because the county no longer has control of the source of revenue to repay the bonds where it has transferred the airport to the WCAA. The following sections of Act 90 are pertinent:
* * *
Although Act 90 requires the transfer, it also provides that the PAA—in this case the WCAA—accepts the liability for those bonds. Thus, both the revenue and the obligations under the bonds are transferred to the WCAA. Therefore, with respect to the bonds, we cannot conclude that Act 90 operates as a substantial impairment of contract. Blue Cross Blue Shield, supra, holds that if the impairment is minimal, then the analysis ends—no constitutional impairment exists.
Further, we are not convinced that the transfer of the operational jurisdiction from plaintiffs to the WCAA is, as plaintiffs complain, "directly contrary to the express contractual commitment made by the County to ... existing bondholders." The pledge not to transfer airport property was meant to ensure that assets necessary to generate the revenue remain dedicated to that purpose. That fact has not changed: the airport property will remain subject to airport purposes and the revenue will continue to fund the bonds. Plaintiffs simply have not shown that the bondholders have a contractual entitlement to retain the commission as the airport manager, as distinguished from a new agency controlled by the board as set forth by the statute.
We do not find dispositive United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977), a case on which plaintiffs rely, because in that case the New Jersey legislature attempted to repeal a condition of the bonds that barred the use of port revenues to fund passenger rail service. In contrast, Act 90 does not operate to change a condition of the bonds so that airport revenue could be used to finance, for example, subway mass transit. Thus, United States Trust involved a change in the permissible use of revenues in relation to the bonds, a matter of vital concern to the bondholders. This case does not involve the repeal of a promise regarding the use of revenue and is not brought by bondholders.
Assuming arguendo that the contract is substantially impaired, plaintiffs still do not prevail. As plaintiffs characterize it, the alleged impairment to the bonds here cannot be maintained if "an evident and more moderate course would
Plaintiffs next assert, in count II of the amended complaint, that Act 90 imposes an "unfunded" requirement that violates the Headlee Amendment, Const. 1963, art. 9, § 29. In their motion, plaintiffs rely on the second sentence of § 29:
The purpose of this sentence
Our Supreme Court has interpreted that the Legislature intended the Headlee Amendment to apply only to increases in the level of those services and activities that state law mandates in the first instance. Livingston Co. v. Dep't of Management & Budget, 430 Mich. 635, 643, 425 N.W.2d 65 (1988). The Legislature intended § 29 to impose an obligation on the state in relation to each unit of local government with respect to mandated activities as well as new requirements. Schmidt v. Dep't of Ed., 441 Mich. 236, 251, 490 N.W.2d 584 (1992). The Headlee Amendment was intended to limit legislative expansion of requirements placed on local government spending, to limit excessive government spending, and to lower taxes at both the state and the local level. Mahaffey v. Attorney General, 222 Mich.App. 325, 341, 564 N.W.2d 104 (1997).
Plaintiffs then argue that Act 90, subsection 119(3) is unfunded because it requires the county to contribute to the pensions of WCAA employees until the WCAA forms its own pension plan. Defendants conceded at oral argument that, under Act 90, subsection 117(1)(d),
Next, plaintiffs assert that Act 90, subsection 118(3)(c) impermissibly requires the county to assume the costs of airport title insurance, legal fees, and acquisition costs. To support their allegations regarding the title and the transfer, plaintiffs merely argue: "Again, these are new activities or services for which no appropriation or disbursement has been made." Plaintiffs have failed to demonstrate that they are entitled to summary disposition as a matter of law on this point. Maiden, supra. It is logical to conclude that, as owner of the airport, the county has been responsible for title insurance, legal fees, and acquisition costs since the inception of Metro, which would mean that the insurance, fees, and costs were not new activities. Moreover, plaintiffs have not shown that Act 90 differs from what state law required of local units in 1978 regarding airport title insurance, legal fees, and acquisition costs, as is required under a Headlee analysis, see Judicial Attorneys Ass'n, supra, 460 Mich. at 606-610, 597 N.W.2d 113.
Plaintiffs also contend that an unfunded activity results from the following passage of Act 90, subsection 111(9):
Plaintiffs argue that the transfer increases the burden on general fund revenues to pay for fixed obligations that were incurred in part in reliance on airport revenues. Plaintiffs do not, however, explain or demonstrate how the Headlee Amendment is implicated by this provision of Act 90.
Plaintiffs next argue in count III of their complaint that Act 90 will cause the county to default on obligations to third parties in violation of the Impairment of Contracts Clause. As we decided in relation to plaintiffs' count I, we conclude that Act 90 does not operate to impair the county's contracts.
Plaintiffs contend that the establishment of the airport authority will deprive the county of revenue and contributions previously promised to pay contracts and other obligations incurred for services
With respect to existing contracts, the statute requires the WCAA to honor those contracts. Act 90 provides for the assumption of liabilities by the airport authority. See, e.g., subsection 118(1), which provides: "The transfer of the operational jurisdiction over an airport to the authority may not in any way impair any contracts with airlines, vendors, tenants, bondholders, or other parties in privity with the local government that owns the airport...." See also subsection 117(1)(c), cited in footnote 45, infra. Therefore, Act 90 plainly states that the transfer will not impair contracts.
Plaintiffs appear to further assert that the transfer will result in lost revenues to the county, which will then result in the county's failure to meet its contractual obligations to third parties. We note that plaintiffs' claims under this issue are purely speculative. Plaintiffs claim that Act 90 would "sever" the airport from the county, which "will likely cause the County to default on obligations to its creditors." Plaintiffs have not provided specific facts to support this allegation, but merely allege that at some future date the county might be unable to meet its financial obligations. Without more, plaintiffs have not shown they are entitled to summary disposition. See Latham v. Nat'l Car Rental Systems, Inc., 239 Mich.App. 330, 336, 608 N.W.2d 66 (2000).
Moreover, plaintiffs have not described an impairment of the obligation of contract; they have merely asserted that the legislation may have collateral economic consequences to the county. The same is true respecting plaintiffs' contention that the county "may" lose $17.2 million in revenues "if" the airport chooses to obtain from elsewhere certain services now provided by the county. Plaintiffs produce no substantiation for their claim that the WCAA will choose to obtain those services elsewhere or, more importantly, that the WCAA's choice would interfere with a specific contract.
Plaintiffs also complain that certain services provided by county departments will not be reimbursed. Plaintiffs rebuff defendants' reliance on subsection 118(4), which provides:
Plaintiffs appear to be arguing that the WCAA may choose not to retain the county's services or may not fully reimburse it. These arguments do not fall within the constitutional protection of the Impairments of Contracts Clause. The county has no constitutional right to be the chosen vendor for airport services and the enactment of Act 90 does not automatically mean that the county would not be paid or would be underpaid.
Plaintiffs argue that Act 90 interferes with services provided by Information Technology and Imaging & Office Technology. Plaintiffs have not, however, shown an impairment of a specific contract. Plaintiffs have not demonstrated that an impairment of contracts occurs where the
Plaintiffs next raise a First Amendment claim, arguing that provisions of Act 90 that direct county officials to take certain actions upon penalty of criminal and civil prosecution constitute a prior restraint on political speech (Amended Complaint, count IV, p. 20, ¶¶ 74-76). We reject this claim.
Plaintiffs cite a portion of subsection 110(2) as an example of the violation of their right to free speech:
Insofar as this section relates to the FAA, plaintiffs' argument on this point is moot: the FAA has given its approval and has recognized the WCAA as the sponsor of Metro.
Plaintiffs next cite the following subsection of Act 90:
Plaintiffs also complain about the transfer, under § 117, of rights, title, and interest in the fixtures, equipment, materials, furnishings, and other personal property owned and used by the airport to the WCAA. Finally, plaintiffs refer to subsection 118(3), which provides:
(f) Maintain and repair, including providing snow removal for, any road providing
These provisions of Act 90 are simply incomparable to cases involving core political speech issues, e.g., Buckley v. American Const Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (involving the circulation of ballot-initiative petitions), or McIntyre v. Ohio Elections Comm., 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (regarding the distribution of anonymous leaflets opposing a tax levy). In contrast, Act 90 does not implicate plaintiffs' free speech rights under the First Amendment; hence, we decline plaintiffs' invitation to rule that Act 90 burdens their core political speech.
In count V, plaintiffs next contend that Act 90 is invalid under the constitution because the local government, not a PAA, is to have control over public places such as airports. Plaintiffs first argue that the Legislature did not have the power to create a local unit of government, a PAA, to manage airports. Plaintiffs do not acknowledge Const. 1963, art. 7, § 27, which provides in part:
Notwithstanding any other provision of this constitution the legislature may establish in metropolitan areas additional forms of government or authorities with powers, duties and jurisdictions as the legislature shall provide. [Const. 1963, art. 7, § 27 (emphasis supplied).]
Consequently, the Legislature had the power to create PAAs in metropolitan areas.
In tandem with this argument, plaintiffs contend that PAAs are not actually local government units, but instead are state agencies. We refer to subsection 110(1) of Act 90, which provides:
In interpreting statutes, courts give effect to the intent of the Legislature by reviewing the plain language of the statute itself. In re MCI Telecommunications Complaint, 460 Mich. 396, 443, 596 N.W.2d 164 (1999). The plain and unambiguous language of Act 90 indicates that a PAA is a unit of the local government, not of the state.
Plaintiffs, however, assert that the WCAA is not a county agency because airport employees must choose to be employees of the WCAA and cannot remain county employees while working at the airport. Plaintiffs give no authority for their proposition that the transfer of employees necessitates that the WCAA is a state agency. This Court will not search for authority to support a party's position. See Great Lakes Div. of Nat'l Steel Corp. v. Ecorse, 227 Mich.App. 379, 425, 576 N.W.2d 667 (1998).
Also, plaintiffs argue that if the WCAA was a county agency, no need would exist to transfer licenses, certificates, property, and funds from the county to the WCAA. The plaintiffs' argument notwithstanding, the transfer of operating certificates and funds is logical where the WCAA, not the county, is the entity managing Metro Airport. The fact that the WCAA holds the certificates, licenses, property, and funds reflects an efficient operation, and does not mean that the WCAA is a state agency. The goal of Act 90, the efficient operation of Michigan's
Plaintiffs also contend that the WCAA is an agency of the state because the governing officers of the WCAA were not elected by popular vote, citing Metropolitan Police Bd. of Detroit v. Bd. of Auditors of Wayne Co., 68 Mich. 576, 36 N.W. 743 (1888).
Plaintiffs also claim that Act 90 violates art. 7, § 29 of the Michigan Constitution, which provides:
Earlier cases from this Court have interpreted the "reasonable control" phrase in this constitutional provision and have determined that the control exercised by local units of government is limited and not exclusive. For example, defendants cite Jones v. Ypsilanti, 26 Mich.App. 574, 182 N.W.2d 795 (1970), where the defendant city disputed that it had jurisdictional control over the sidewalk abutting a state trunkline highway where the plaintiff slipped and fell. The Jones defendant relied on Const. 1963, art. 5, § 28, which established the state highway commission and gave the commission control over highways. The plaintiff in Jones, however, argued that Const. 1963, art. 5, § 28 should be considered together with Const. 1963, art. 7, § 29, which led to the conclusion that the state's control was paramount—but not exclusive. Jones, supra at 578-579, 182 N.W.2d 795.
The Jones Court subsequently concluded:
Returning to the constitutional provision at issue, even assuming arguendo that Const. 1963, art. 7, § 29 applies here to the roads and public places connected with Metro Airport, the cases cited by plaintiffs are not dispositive. Consider Dearborn v. Michigan Turnpike Authority, 344 Mich. 37, 73 N.W.2d 544 (1955), which addressed the constitutionality of the turnpike act in conjunction with the "North-South Turnpike." Our Supreme Court quoted Allen, supra, which considered the phrase "reasonable control" in the above constitutional provision:
That passage indicates that the county does not have an absolute privilege regarding the use of its roads. Instead, the Legislature has authority, in some instances, to determine the reasonableness of a county's control of its streets. In Act 90, the Legislature determined that the entity managing the airport should have control of the airport property, easements, rights of access, and appurtenances. Where airports are governed by state regulation in the Michigan Aeronautics Code, it logically follows that the Legislature would be the proper body to determine which entity, the county or the WCAA, should have control over the airport roads.
Further, it is curious that plaintiffs cited in their favor Detroit, Wyandotte & Trenton Transit Co. v. Detroit, 260 Mich. 124, 244 N.W. 424 (1932), where our Supreme Court ruled that the city could not regulate jitneys, which are small automobiles or buses that follow a regular route and transport passengers, because the city's regulation interfered with the state's jurisdiction. While the Court acknowledged that the city had a right of "reasonable control" over its streets, the Court observed that the state had taken control of the regulation of this area and thus the ordinance was invalid. Id. at 129, 244 N.W. 424.
Likewise, here the Legislature has the power to regulate the powers and duties of counties in relation to highways and airports pursuant to Const. 1963, art. 7, § 16, which provides in pertinent part:
The legislature may provide for the laying out, construction, improvement and maintenance of highways ... and airports by the state and by the counties... and may authorize counties to take charge and control of any highway within their limits for such purposes. The legislature may provide the powers and duties of counties in relation to highways
Accordingly, the county's attempt to retain control of the streets related to the airport and airport facilities must yield to the Legislature's power to regulate airports under the constitution.
Plaintiffs argue in count VI of their amended complaint that Act 90 is invalid because a county may not lend credit to any private or public agency or "an autonomous agency created by the state." The Michigan Constitution provides that "[t]he credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution." Const. 1963, art. 9, § 18. The prohibition against the lending of credit applies to counties as political subdivisions and instrumentalities of the state. See Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich. 93, 422 N.W.2d 186 (1988); Oakland Co. Drain Comm'r v. Royal Oak, 306 Mich. 124, 142, 10 N.W.2d 435 (1943). The purpose of this section is to ascertain that the state, which generally cannot borrow, does not accumulate unauthorized debts by guaranteeing the debts of others. Advisory Opinion re Constitutionality of 1966 PA 346, 380 Mich. 554, 564, 158 N.W.2d 416 (1968).
This Court reiterated the following principles in conjunction with the lending of credit:
Plaintiffs complain that Act 90 violates the lending of credit provision because it requires the county to transfer to the WCAA all beneficial use and income of property acquired and used in conjunction with airport operations. With respect to the revenue bonds, however, the obligation followed the transfer of the revenues and no lending of credit occurred. Moreover, in enacting Act 90, the state did not create an obligation legally enforceable against the county for the benefit of the WCAA. See Petrus, supra.
With regard to the airport hotel bonds, which are secured by the county's pledge of full faith and credit, which obligation is not assumed by the WCAA under Act 90, plaintiffs conceded at oral argument that in the initial transaction they received value, $6.2 million, for the county's full faith and credit pledge. Given that value, the initial transaction did not constitute a lending of credit, a fact admitted by plaintiffs. This Court declines to find that Act 90 operates as a lending of credit regarding the airport hotel bonds where the initial transaction did not constitute a violation of that constitutional provision.
Plaintiffs also argue that Act 90 operates as a "taking" pursuant to Const. 1963, art. 10, § 2. The state and federal constitutions prohibit the taking of private property for public use without just compensation. U.S. Const., Am. V;
Plaintiffs contend that their property is private because it is held in a "proprietary capacity" and cite Mayor of Detroit v. Park Com'rs, 44 Mich. 602, 7 N.W. 180 (1880), for the proposition that the state may not take such municipal property. A "proprietary capacity" is defined as including the "functions of a city or town when it engages in a business-like venture as contrasted with a governmental function." Black's Law Dictionary (5th ed). Even considering the facts most favorably to plaintiffs, they have not shown that their operation of Metro Airport was in a private, or proprietary, capacity.
The airport was established under the former act, which states that airports are to benefit the public. Additionally, the constitution itself provides that the Legislature may provide for the laying out, construction, and maintenance of airports, as it may with highways, thereby indicating that airports are held in a public rather than a proprietary capacity. See Const. 1963, art. 7 § 16.
Plaintiffs assert in count VII of their amended complaint that Act 90 is invalid under the Title-Object Clause. The Title-Object Clause provides: "No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title." Const. 1963, art. 4, § 24.
Plaintiffs allege that Act 90 implicitly amends the Revenue Bond Act (RBA), M.C.L. § 141.101 et seq., because Act 90 does not indicate in its title that it amends the RBA (Amended Complaint, p. 27, ¶ 108). Generally, the "purpose of the [title-object] clause is to prevent the Legislature from passing laws not fully understood, to ensure that both the legislators and the public have proper notice of legislative content, and to prevent deceit and subterfuge." Phinney v. Perlmutter, 222 Mich.App. 513, 552, 564 N.W.2d 532 (1997). The goal of the clause is notice, not restriction of legislation. Pohutski v. Allen Park, 465 Mich. 675, 691, 641 N.W.2d 219 (2002).
In People v. Kevorkian, 447 Mich. 436, 453, 527 N.W.2d 714 (1994), our Supreme Court explained that three challenges may be brought against statutes on the basis of Const. 1963, art. 4, § 24(1) a "title-body" challenge, which indicates that the body exceeds the scope of the title, (2) a "multiple-object challenge," which indicates that the body embraces more than one object, and (3) a "change of purpose challenge," which indicates that the subject matter of the amendment is not germane to the original purpose. In the instant case, plaintiffs have not indicated a specific challenge,
With regard to a title-body challenge, this Court has indicated that the title of an act must express the general purpose or object of the act. People v. Cynar, 252 Mich.App. 82, 84, 651 N.W.2d 136 (2002). The revised title of Act 90 provides, with the added or amended language in italics:
The gist of plaintiffs' contention is that Act 90 implicitly amends the RBA in such a manner that the purpose exceeds the scope of the quoted language.
Plaintiffs claim that the provisions of Act 90 conflict with the RBA, which provides in part that "[t]he bonds authorized hereunder shall not be subject to any limitations or provisions contained in the laws of the state of Michigan, pertaining to public corporations or in the charters of public corporations, as now in force or hereafter amended, other than as provided for in this act." MCL 141.111. Plaintiffs have not shown, however, that Act 90 subjects the airport bonds to limitations. Rather, Act 90 merely grants rights to PAAs for the issuance of bonds and their repayment and sets forth procedures regarding bonds, as illustrated below.
The provisions of Act 90 that plaintiffs assert are relevant
The RBA defines a "public corporation," in part, as "an authority created by or under an act of the legislature," M.C.L. § 141.103(a). Therefore, the WCAA is a public corporation because the Legislature created it as a political subdivision of the local government that owns the airport, Act 90, § 110. The title of Act 90 indicates that PAAs have the authority to manage airports. The title need not refer to every detail of the act; rather, "[i]t is sufficient that `the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose....'" Livonia v. Dep't of Social Services, 423 Mich. 466, 501, 378 N.W.2d 402 (1985) (citations omitted). Where the management of the airport includes financial matters such as bonds, the bonds are sufficiently related to the act so that the title of Act 90 does not exceed its scope.
Section 120 provides in pertinent part: "The revenues raised by an authority may be pledged, in whole or in part, for the repayment of bonded indebtedness and other expenditures issued or incurred by the authority." Act 90, subsection 120(1). As indicated above, PAAs are "public corporations" that can issue bonds under the RBA. It therefore follows that PAAs have the power to pledge revenue to repay those bonds.
Section 123 provides that "[t]he authority may borrow money and issue municipal securities in accordance with an exercise of all of the powers conferred upon municipalities by the revised municipal finance act, 2001 PA 34, M.C.L. § 141.2101 to 141.2821." Section 124 states: "All bonds or other evidences of indebtedness issued by an authority under this chapter, and the interest thereon, are free and exempt from all taxation within the state, except for transfer and franchise taxes." Those provisions simply do not reflect limitations on the bonds issued pursuant to the RBA, so plaintiffs' argument with respect to them fails.
Section 125 authorizes the legislative body of any local government that owns an airport over which operational jurisdiction has been transferred to pledge its full faith and credit behind any obligation or evidence of indebtedness of the PAA or advance funds or convey property to the PAA. Plaintiffs do not explain how that section operates as an amendment of the RBA. Section 125a states that PAAs may, to effectively manage their debt service, agree to an interest rate exchange provided that the agreement states that it is "payable from general funds ... from any available money or revenue sources ... securing the obligation or evidence of indebtedness in connection with the agreement." Finally, section 125b contains five subsections regarding the liability of the
All these sections set forth procedures regarding airport indebtedness, which includes bonds. To require the title of Act 90 to reflect all those procedures would result in an unworkably long and unwieldy title. As indicated in Livonia v. Dep't of Social Services, supra, a general title is sufficient; the title need not contain every detail of the act.
Plaintiffs' reliance on Blades v. Bd. of Water Comm'rs of Detroit, 122 Mich. 366, 81 N.W. 271 (1899), is misplaced. The Court described the amended legislation in Blades as "radical" and "virtually abolishing the water rate system." Id. at 378, 81 N.W. 271. The amending provision changed the system from water rates to taxation by taxing businesses while providing free water to the majority of the city. The Court held that the Title-Object Clause was violated because the title did not reflect the rate system changes but only reflected the transfer of authority:
In contrast to Blades, here the title of Act 90 reflects its purpose—to provide for the transfer of airport management to PAAs. Plaintiffs have not shown that the body of Act 90 contains provisions that are not essential to accomplish that object. Further, plaintiffs have not shown that the amendments of Act 90 represent the "radical" type of changes present in Blades.
Plaintiffs also direct this Court to the lengthy discussion of amendment by implication in Alan v. Wayne Co., 388 Mich. 210, 200 N.W.2d 628 (1972). Distinguishing this case from Alan, however, is that the Alan Court determined that the legislation at issue there did, in fact, purport to create an exception to the RBA without expressing that in the title. Id. at 270, 200 N.W.2d 628. The Court then embarked on an extended analysis
With respect to the "multiple-object challenge," which indicates that the body embraces more than one object, the reason for limiting the objective of an act to a single purpose is to avoid bills addressing "diverse subjects that have no necessary connection." Mooahesh v. Dep't of Treasury, 195 Mich.App. 551, 564, 492 N.W.2d 246 (1992), disagreed with on other grounds in Silverman v. Univ. of Michigan Bd. of Regents, 445 Mich. 209, 516 N.W.2d 54 (1994). A statute may authorize activities that further the general purpose of the act without violating the one-object constitutional limitation. Kuhn v. Dep't of Treasury, 384 Mich. 378, 388, 183 N.W.2d 796 (1971).
One purpose of Act 90 was to facilitate the operation of Michigan airports by creating PAAs to manage airports
With regard to the "change of purpose challenge," which examines whether the subject matter of the amendment is germane to the original purpose, plaintiffs have not shown that the subject of Act 90 is unrelated to the original purpose of the law. The purpose of the Michigan Aeronautics Code, of which Act 90 is a part, appears to be to provide uniform guidelines for the operation of Michigan airports. Act 90 relates to the management and operation of Michigan airports. The fact that Act 90 also creates PAAs to do so does not represent a change in the general purpose of the original law.
Finally, plaintiffs contend that Act 90 violates the Title Object Clause because it affects only Wayne County, although Wayne County is not named in the title (Amended Complaint, p. 28, ¶ 110). Although Metro Airport currently is the only airport affected by Act 90, the statute does not limit its application to Metro Airport alone. Act 90 is based on the number of enplanements; presumably, another airport in the future could meet the requisite number of enplanements so as to be subject to Act 90. Accordingly, where Act 90 may at some future date apply to an additional airport, the title of Act 90 does not violate the Title-Object Clause by failing to identify that it currently applies only to Metro Airport.
In count VIII of their complaint, plaintiffs argue that Act 90 is constitutionally unsound because it is a local or special act that was not approved by a majority of the electors voting in the county. The constitutional provision at issue states as follows:
The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by two-thirds of the members elected to and serving in each house and by a majority of the electors voting thereon in the district affected. Any act repealing local or special acts shall require only a majority of the members elected to and serving in each house and shall not require submission to the
Our Supreme Court recently discussed the local act provision in Michigan v. Wayne Co. Clerk, 466 Mich. 640, 648 N.W.2d 202 (2002). The statute at issue in that case, 2002 PA 432, provided that a city of over 750,000 residents as determined by federal census, with a city council of nine at-large members, should place a particular question on the ballot for the election of August 6, 2002. The statute did not refer to Detroit by name; however, only the city of Detroit met the population criterion. The Detroit City Council argued that Act 432 violated Const. 1963, art. 4, § 29 because it was a local act that applied only to Detroit.
Our Supreme Court first noted that it previously had upheld population-based statutes where other cities or counties could qualify for inclusion if their populations changed. Wayne Co. Clerk, supra at 642, 648 N.W.2d 202. The Court then observed that a statute fails as a general act where it cannot apply to other units of government. Id. at 643, 648 N.W.2d 202. Applying this analysis, our Supreme Court stated:
"`Clearly, because of its provision as to population, the act applies to Wayne county only. If it is a reasonable and logical basis of classification, considering the subject of legislation, unquestionably a specified population may be made the test of the applicability of a general legislative act; and under such conditions that act will not be construed to be invalid as local legislation. But where the subject of legislation is such that population has no obvious relation to the purpose sought to be accomplished, an attempt to make the application of the legislative act dependent on the population is unwarranted and amounts to local legislation. Attorney General ex rel Dingeman v. Lacy, 180 Mich. 329 [146 N.W. 871 (1914) ].'"
* * *
"The second test of a general law, based upon population, is that it shall apply to all other municipalities if and when they attain the statutory population. It must have—an open end
Turning to the case at bar, the first test is whether the number of enplanements has a reasonable relation to the purpose of the statute. The legislative purpose behind Act 90 was to address management and contracting issues at Metro Airport (see House Legislative Analysis); the purpose was met by the creation of PAAs to manage Michigan's busiest airports. The number of enplanements has a reasonable relation to the purpose of Act 90, for it would be irrational to require the appointment of a PAA to manage a tiny airport serving a small population with an insignificant number of enplanements. Thus, the number of enplanements has an obvious relation to the purpose of the legislation.
Additionally, Act 90 meets the second test outlined above. Other Michigan airports, when they reach the requisite number of enplanements, will qualify under the statute. Act 90 consequently has "an open end through which [airports] are automatically brought within its operations when they attain the required [enplanements]."
Plaintiffs, however, contend that Act 90 automatically creates only the WCAA, while all other airport authorities under Act 90 are created by the vote of the legislative body of the local unit that owns the airport, citing subsection 110(2). That section provides in part:
The plain language of the statute belies plaintiffs' argument: once an airport becomes a "qualified airport," an authority automatically is created. With regard to the vote of the legislative body, plaintiffs apparently are confusing subsection 110(2) with the section governing airports that are not "qualified" airports, as illustrated in subsection 110(3):
Thus, the legislative body may vote for an authority only in relation to an airport that is not a qualified airport. As previously discussed, Act 90 is open-ended in such a manner that in the future another airport could become qualified so that the statute may apply someday to an airport other than Metro. Where plaintiffs acknowledge that another airport will qualify in the future and where Act 90 does not have a cutoff date similar to that in Detroit City Council, supra, plaintiffs have not shown that Act 90 is a local act.
Finally, in count IX of the amended complaint, plaintiffs assert that the Federal Aviation Act, 49 U.S.C. 47101 to 47153, preempts Act 90. We hold that no conflict preemption exists, where plaintiffs can comply with Act 90 by transferring
As a threshold matter, we reject defendants' assertion that no private cause of action exists here, citing, inter alia, Northwest Airlines, Inc. v. Kent Co., 955 F.2d 1054, 1058-1059 (C.A.6, 1992).
Under the Supremacy Clause, U.S. Const., art. VI, cl. 2, federal law preempts state law in three circumstances: (1) where Congress has expressed an intent to preempt state law, (2) where state law regulates conduct in a field that Congress intended to occupy exclusively, and (3) where state law actually conflicts with federal law. Grand Trunk W R Co. v. City of Fenton, 439 Mich. 240, 243-244, 482 N.W.2d 706 (1992). A general presumption exists against federal preemption. Duprey v. Huron & E R Co., Inc., 237 Mich.App. 662, 665, 604 N.W.2d 702 (1999). Courts will find preemption only where it is the clear and unequivocal intent of Congress. Martinez v. Ford Motor Co., 224 Mich.App. 247, 252, 568 N.W.2d 396 (1997).
Plaintiffs suggest that Act 90 presents a "textbook case" of "conflict preemption," which occurs where a state law is impliedly preempted because it actually conflicts with federal law. Thus, a state law is preempted where a private party cannot possibly comply with both state and federal requirements. English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). "Congressional intent is the cornerstone of preemption analysis." Ryan v. Brunswick Corp., 454 Mich. 20, 27, 557 N.W.2d 541 (1997). The determination of preemption involves statutory interpretation, which is a question of law. Konynenbelt v. Flagstar Bank, FSB, 242 Mich.App. 21, 27, 617 N.W.2d 706 (2000).
Plaintiffs state that the county has made assurances to the FAA when applying for various federal airport grants. They argue that those assurances are binding on Wayne County, as a "sponsor"
Plaintiffs refer to the following assurance as the general type of assurance they have given to the FAA over the years:
Thus, plaintiffs state that the transfer of airport operations to the WCAA precludes their reservation of authority to ensure that Metro will be operated in accordance with federal law.
Plaintiffs are correct that the county remains responsible for ensuring that federal guidelines are met. In a letter dated August 7, 2002, from David Bennett, FAA Director, Officer of Airport Safety and Standards, to plaintiff Solomon, Bennett stated that Wayne County is not being relieved of its obligations with regard to outstanding assurances. The sponsor here is the county. Under the act, the county, through the county executive and the commission, appoints a majority of the WCAA board members. Further, the statute itself requires that the WCAA assume all the county's duties, liabilities, responsibilities, and obligations as sponsor of the airport.
Further supporting the conclusion that the county has retained sufficient rights and authority pursuant to federal law is the fact that Act 90 requires that the FAA approve of the transfer of the grat agreements before such a transfer may occur.
Plaintiffs, however, argue that the county also must approve such a transfer, stating that the federal statute "strongly suggests
In sum, we decline to rule on plaintiffs' Headlee claim as related to nontransferring employees and dismiss that claim without prejudice. Having resolved all remaining claims in favor of defendants, we dismiss plaintiffs' remaining claims with prejudice. Given the resolution of the above issues, we decline to further address the cross-complaint.