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Opinion No. 5268

February 16, 1978


Separation of powers, Const 1963, art 3, Sec. 2


Separation of powers


Panel to review taxonomy of community college courses


Panel to review taxonomy of community college courses

A provision in an appropriation act establishing a panel of five members, four of whom are members of the legislature, to give direction, review and approve actions of the Department of Education is unconstitutional as a violation of the doctrine of separation of powers.

Honorable Jack Faxon

State Senator

The Capitol

Lansing, Michigan

Dr. John W. Porter

Superintendent of Public Instruction

Department of Education

Lansing, Michigan

You have both requested my opinion as to the constitutionality of 1977 PA 97, Sec. 6 which provides:

'The department of education shall revise and update the taxonomy of community college courses (1) for the 1977 calendar year and at periodic intervals thereafter pursuant to this act. This taxonomy shall be limited to those courses for which community colleges seek state funding. A panel consisting of 5 members shall be established to give direction, to review and approve the actions of the department of education with regard to the development of the taxonomy and matters of difference between a college and the department concerning the taxonomy. The panel shall consist of 2 senators and 2 representatives selected from the house and senate appropriations committees on a bipartisan basis, and 1 representative of the department of management and budget.' (emphasis supplied)

In Const 1963, art 3, Sec. 2 the people have provided:

'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.'

In Township of Dearborn v Dearborn Township Clerk, 334 Mich 673; 55 NW2d 207 (1952), the Michigan Supreme Court held that justices of the peace may not serve as members of township boards despite the fact that such an arrangement had been in existence for over 100 years. In so holding, the Court stated:

'In many decisions this Court has upheld and jealously guarded the right to keep distinctly separate one department from another. The doctrine of strict separation was early set forth by Mr. Justice Cooley in People, ex rel. Sutherland, v. Governor, 29 Mich 320 (18 Am Rep 89). In holding that the apportionment of powers to one of the 3 coordinate branches is a prohibition of its exercise by either of the other departments, he said:

"Our government is one whose powers have been carefully apportioned between 3 distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.'

'In other decisions we have reaffirmed that doctrine and applied it to a variety of situations. We have struck down attempts by the legislature to give nonjudicial power to courts (Houseman v Kent Circuit Judge, 58 Mich 364; Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich 187; Anway v. Grand Rapids Railway Co., 211 Mich 592 [12 ALR 26]). We forbade any attempt by the legislature to restrict judicial powers or qualifications (People v. McMurchy, 249 Mich 147; Attorney General, ex. rel. Cook, v. O'Neill, 280 Mich 649). In C. F. Smith Co. v. Fitzgerald, 270 Mich 659, we reaffirmed the doctrine that the courts cannot legislate under the guise of the examination of the validity of a law. In Wood v. State Administrative Board, 255 Mich 220; and Civil Service Commission v. Auditor General, 302 Mich 673, we emphasized that the legislative and the executive could not encroach upon each other's powers. For other statements of the general rule see Cooke v. Holland Furnace Co., 200 Mich 192 (LRA1918E, 552), and Local 321, State, County & Municipal Workers of America v. City of Dearborn, 311 Mich 674.' 334 Mich at 682-683; 55 NW2d at 205

The Court further noted the rule that if there is any ambiguity, the doubt should be resolved in favor of the traditional separation of governmental powers. 334 Mich at 689; 55 NW2d at 208.

OAG, 1975-1976, No 4873, p ___ (May 2, 1975) held that:

'The legislature may impose funding controls through appropriation legislation but it cannot assume administrative controls with respect to highway commission programs that provide for an exercise of executive powers of government by the legislature which would be in violation of the Const 1963, art 3, Sec. 2.'

In the first sentence of 1977 PA 97, Sec. 6, the taxonomy function has been reposed in the Department of Education, which is headed by the State Board of Education. See Chapter 13 of the Executive Organization Act of 1965, 1965 PA 380, MCLA 16.400 et seq; MSA 3.29(300) et seq. Thus, the panel established in the last two sentences of 1977 PA 97, Sec. 6, consisting of four legislators and one representative of the Department of Management and Budget, exercises administrative control over the taxonomy function that has been entrusted to an agency within the executive branch of state government. Consequently, the legislative members of the panel are performing an executive function contrary to Const 1963, art 3, Sec. 2.

It may be noted that the legislature may, if it wishes, provide for a taxonomy of community college courses in the statute rather than delegate authority to the Department of Education to revise and update such taxonomy. The right of the legislature to delegate such authority to an agency in the executive branch is fully recognized by the courts in numerous decisions. See Argo Oil Corp v Atwood, 274 Mich 47; 264 NW 285 (1936); Smith v Wayne County Sheriff; 278 Mich 91; 279 NW 227 (1937); City of Traverse City v Railroad Commission, 202 Mich 575; 168 NW 481 (1918); Ranke v Corporation & Securities Commission, 317 Mich 304; 26 NW2d 898 (1947); and Department of Natural Resources v Seaman, 396 Mich 289; 240 NW2d 206 (1976). However, having delegated this authority to revise and update the taxonomy of community college courses to the Department of Education, a member of the legislature may not serve on a committee to oversee the manner in which the department is carrying out its function without violating the doctrine of separation of powers as expressed in Const 1963, art 3, Sec. 2.

It is, therefore, my opinion that the last two sentences of 1977 PA 97, Sec. 6, violate Const 1963, art 3, Sec. 2 for the reason that they purport to authorize members of the legislature to exercise power reposed in the executive branch of state government.

Frank J. Kelley

Attorney General

(1) The taxonomy of community college courses classifies such courses according to the categories established by the legislature in 1977 PA 97, Secs. 5(1)(a) and 7(1)(a)(b)(c) and (6). Those classifications determine the level of legislative funding for the courses offered by the community colleges.