[ Previous Page]  [ Home Page ]

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6377

August 13, 1986

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29--Requirement of state law necessitating state funding

In the event that the Legislature were to designate a county as the district control unit of a district court subject to the approval of the county board of commissioners of the county, such legislative action would not constitute a "requirement of state law" necessitating state funding under Const 1963, art 9, Sec. 29.

Honorable Rudy J. Nichols

State Senator

The Capitol

Lansing, Michigan

Honorable Claude A. Trim

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

"May legislation be enacted which would amend Act No. 236 of the Public Acts of 1961, as amended, being sections 600.101 to 600.9911 of the Compiled Laws of 1948, to provide that certain District Courts of the Third Class described in Section 8123 be abolished and reconstituted as District Courts of the Second Class, with the County of Oakland as the new District Control Unit and without new State appropriations being made to fund the same, the said County agreeing to save the State harmless from any new fiscal responsibility, without the said legislation being in violation of Const. 1963, art. 9, Sections 25-34, specifically Section 29?"

The Headlee Amendment, Const 1963, art 9, Sec. 29, provides:

"The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law 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. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18."

The Legislature is expressly authorized by Const 1963, art 9, Sec. 34, to implement the Headlee Amendment. Pursuant to the mandate of Const 1963, art 9, Sec. 34, the Legislature has implemented Const 1963, art 9, Sec. 29 to define the term "state requirement" in MCL 21.234; MSA 5.3194(604):

"(5) 'State requirement' means a state law which requires a new activity or service or an increased level of activity or service beyond that required of a local unit of government by an existing law. State requirement does not include any of the following:

"(h) A requirement of a state law which does not require a local unit of government to perform an activity or service but allows a local unit of government to do so as an option, and by opting to perform such an activity or service, the local unit of government shall comply with certain minimum standards, requirements, or guidelines."

Const 1963, art 6, Sec. 1, provides:

"The judicial power of the states is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by two-thirds vote of the members elected to and serving in each house."

Pursuant to the constitutional authority to establish courts of limited jurisdiction, the Legislature enacted MCL 600.8101 et seq; MSA 27A.8101 et seq, to create the district court system in this state.

By means of 1980 PA 129, the Legislature authorized additional district judgeships and in MCL 600.8175; MSA 27A.8175, provided:

"(2) By permitting an additional judgeship, the legislature is not creating that judgeship. If a district control unit, acting through its governing body, approves the creation of an additional district judgeship, that approval constitutes an exercise of the district control unit's option to provide a new activity or service or to increase the level of activity or service offered in the district control unit beyond that required by existing law, as the elements of that option are defined by Act No. 101 of the Public Acts of 1979, and a voluntary acceptance by the district control unit of all expenses and capital improvements which may result from the creation of the judgeship. However, the exercise of the option does not affect the state's obligation to pay the same portion of the additional judge's salary which is paid by the state to the other district judges in the same district, or to appropriate and disburse funds to the district control unit for the necessary costs of state requirements established by a state law which becomes effective on or after December 23, 1978." MCL 600.8175(2); MSA 27A.8175(2).

The exercise of such an option by a local unit of government places such legislation outside the parameters of Const 1963, art 9, Sec. 29.

In Ann Arbor v. Michigan, 132 Mich App 132, 136; 347 NW2d 10 (1984), lv den 425 Mich 856 (1986), the Michigan Court of Appeals held that a statute or rule allowing a local unit of government to perform the activity of providing fire service, but not requiring it, is not a "requirement of state law" under Const 1963, art 9, Sec. 29.

OAG, 1981-1982, No 6022, p 514, 517 (January 7, 1982), concluded, with regard to a voluntary assumption of new services by community mental health boards, "that under 1981 PA 39, Sec. 24, the community mental health boards are not mandated or required to take over any new service. The Act made it entirely voluntary on the part of the boards whether to participate. Under such circumstances, Const 1963, art 9, Sec. 29 is not violated."

It is my opinion, therefore, that in the event the Legislature were to designate a county as the district control unit of a district court subject to approval of the county board of commissioners, such legislative action would not constitute a "requirement of state law" necessitating state funding under Const 1963, art 9, Sec. 29.

Frank J. Kelley

Attorney General


[ Previous Page]  [ Home Page ]