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. 5353 August 15, 1978 CONSTITUTION OF MICHIGAN: Art 5, Sec. 29 (powers of Civil Rights Commission) CIVIL RIGHTS COMMISSION: Powers PREEMPTION BY STATE: Civil rights The State Civil Rights Commission has plenary power in the area of civil rights enforcement. The civil rights statute authorizes the Civil Rights Commission to establish and promulgate rules governing its relationship with local human rights commissions and establish criteria for certifying local commissions for deferring of complaints. Municipalities and municipal human relations commissions are limited to performing education, counseling and advisory rules in the area of civil rights enforcement in the absence of an authorization from, or certification by, the State Civil Rights Commission for the performance of further functions. The Honorable George Cushingberry, Jr. State House of Representatives The Capitol Building Lansing, Michigan 48933 The Honorable Jackie Vaughn III State House of Representatives The Capitol Building Lansing, Michigan 48933 You have each requested my opinion on similar questions which may be stated as follows: 1. Does the Michigan Civil Rights Commission have plenary power in the area of civil rights enforcement? 2. Are municipalities preempted by the state in the area of civil rights? 3. Are municipalities and municipal human relations commissions limited to performing educational, advisory and/or conciliatory roles? 4. What is the constitutional status of the Detroit Human Rights Commission? 5. Is the City of Wayne Fair Housing Ordinance (Ordinance No. 44) in conformity with Michigan law? Const 1963, art 5, Sec. 29 establishes the state Civil Rights Commission and defines its sphere of authority as follows: 'There is hereby established a civil rights commission which shall consist of eight persons, not more than four of whom shall be members of the same political party, who shall be appointed by the governor, by and with the advice and consent of the senate, for four-year terms not more than two of which shall expire in the same year. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission. 'The commission shall have power, in accordance with the provisions of this constitution and of general laws governing administrative agencies, to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and to issue appropriate orders. The commission shall have other powers provided by law to carry out its purposes. Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state. 'Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law.' (Emphasis Added) 1. Your first question was the subject of an earlier opinion issued shortly before the effective date of the state Constitution of 1963, OAG 1963-1964, No 4161, p 142 (July 22, 1963). Therein it was concluded that Const 1963, art 5, Sec. 29 was meant to be self-executing and to confer upon the Civil Rights Commission plenary power within its sphere of authority. 'From a plain reading of Article V, Section 29, it is clear that the people have conferred plenary power upon the Civil Rights Commission in its sphere of authority as a constitutional commission to investigate and to secure the enjoyment of civil rights without discrimination. Plec v Liquor Control Commission (1948), 322 Mich. 691.' 'There can be no question that the people have conferred authority not subject to legislative restraint on the Civil Rights Commission to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of civil rights guaranteed by law and by the Michigan Constitution and to secure the equal protection of such civil rights without such discrimination. The provision is self-executing. 'Since the authority of the Civil Rights Commission is limited only by the state Constitution and the Constitution of the United States, the legislature may not restrict the Commission in the exercise of such authority. Article V, Section 29, empowers the legislature, in its discretion, to prescribe the manner in which the investigations are to be conducted by the Commission. But this power in the legislature is circumscribed by the terms of the Constitution itself as set forth in the section. Where the people use the word 'may' and the word 'shall' in the same provision of the Constitution, the words should be given their ordinary and accepted meaning. Smith V. School District No. 6, Fractional, Amber Township (1928), 241 Mich. 366. 'It must follow that within its sphere of authority the Civil Rights Commission is supreme in the exercise of the powers entrusted to it by the people.' In answer to your inquiry, then, it is the opinion of the Attorney General that Article V, Section 29 of the Revised Constitution is self-executing and confers upon the Civil Rights Commission, plenary power within its sphere of authority which includes securing equal protection of civil rights in the fields of employment, education, housing and public accommodations.' This view of the broad extent and plenary nature of the Civil Rights Commission's authority was made manifest by the Michigan Supreme Court in Civil Rights Commission v Clark, 390 Mich 717; 212 NW2d 912 (1973), wherein it was held that the legislature could expand the authority of the Civil Rights Commission, but that such authority as derived from the Constitution could not be so limited. 'A balanced construction of Sec. 29 requires recognition of limitations on the powers of the Legislature to restrict the powers of the CRC. The CRC, just as the Legislature, Governor and this Court, derives its powers directly from the people under the Constitution. 'The Legislature, although it may legislate with regard to the exercise of executive and judicial functions, may not prevent the executive or judicial branches from exercising their powers. Similarly, the Legislature, although it may legislate with regard to the CRC, may not do so in a manner which prevents the CRC from functioning effectively.' 390 Mich 717, 726 (Footnotes omitted) See also, OAG, 1975-1976, No 4896, p 132 (September 9, 1975). Accordingly, your first question is answered in the affirmative. The state Civil Rights Commission does have plenary power in the area of civil rights enforcement as a matter of constitutional principle and design. 2. Pursuant to Const 1963, art 7, Sec. 22, a municipality's power to adopt resolutions and ordinances relating to its municipal concerns is 'subject to the constitution and law.' People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977). A series of Attorney General Opinions addressed the issue of whether Const 1963, art 5, Sec. 29 is preemptive of municipal regulation in the area of civil rights. OAG, 1963-1964, No 4195, p 196 (October 3, 1963), held that Const 1963, art 5, Sec. 29 precluded the City of Detroit from adopting certain civil rights ordinances: 'The people of the State by their adoption of Section 29 of Article V and Section 2 of Article I of the new Constitution clearly established the policy of the State regarding the protection of civil rights against discrimination in their exercise or enjoyment because of religion, race, color or national origin. At no place in the new Constitution is there any delegation to municipalities of authority to regulate or jurisdiction to enforce civil rights against the prohibited discrimination. 'The impact of Article I, Section 2 and Article V, Section 29 of the new Constitution demands the conclusion that the declaration and protection of civil rights is a matter of State concern. There is no inherent or delegated power in a city, such as the City of Detroit, to enact ordinances relating thereto. Nance v. Mayflower Tavern, Inc. (Utah, 1944), 150 P. 2d 773. 'Applying these principles to the proposed ordinances in question, it is clear that the 'Open Occupancy Ordinance' which would seek to bar discriminatory housing practices, and the 'Property Owners' Rights Ordinance' which would seek to declare certain civil rights or persons to make disposition of their property as they see fit, will be beyond the powers of the City of Detroit after January 1, 1964, the effective date of the new Constitution. 'Ordinances such as those creating a human relations commission which has as its primary purpose education, counseling, conciliation, mediation, etc., are within the authority of a city since they do not seek to create or enforce these rights. Indeed, it would seem that agencies engaging in such techniques should be encouraged. 'Therefore, it is my opinion that if either the 'Open Occupancy Ordinance' or the 'Property Owners' Rights Ordinance' of the City of Detroit is adopted, it will be superseded by the Constitution on January 1, 1964, the effective date of the Revised Constitution.' OAG 1963-1964, No 4211, p 229 (November 18, 1963), affirmed the holding of OAG No 4195, supra, but recognized that the constitutional provision did not preclude a municipal ordinance which established a local human relations committee to perform education, conciliation, and mediation functions, and which vested said committee with investigatory--but not 'enforcement'--powers: 'A human relations committee created by ordinance in order to fulfill its function of education, conciliation, mediation, etc. must be able to ascertain the facts. This necessitates inclusion of the power to conduct investigations. Such power to investigate can be conferred. It must be stressed however that such power does not relate to the enforcement of civil rights. Therefore, in answer to your question No. 2, ordinances providing for human relations committees may confer power upon the committee to conduct investigations and such conferred power would not conflict with the Michigan Constitution of 1963.' (Emphasis in Original) OAG, 1967-1968, No 4585, p 91 (August 21, 1967), discussed the previously cited opinions, limiting their holdings to the constitutional preemption of 'civil enforcement' in the area of civil rights, but saving to municipalities the ability to impose 'criminal sanctions' in enforcing local civil rights ordinances--the latter not being within the sphere of authority granted to the state Civil Rights Commission by the Constitution of 1963. 'Therefore, while it is the opinion of this office that ordinances attempting to give civil enforcement powers, by injunctions and otherwise, to local human relations commissions are pre-empted in Michigan by a definitive constitutional grant of those powers to the State Civil Rights Commission, it is also the opinion of this office that because the imposition of criminal sanctions is not within the sphere of authority of the Civil Rights Commission, that the broad underlying power of a municipality to pass civil rights ordinances imposing criminal sanctions is not pre-empted by the existence of the Civil Rights Commission.' (Emphasis in Original) Accordingly, state preemption in the area of civil rights does exist within the sphere of state Civil Rights Commission authority under Const 1963, art 5, Sec. 29. Pursuant to that constitutional provision, and subsequent to the quoted Attorney General Opinions, the legislature enacted the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCLA 37.2101 et seq; MSA 3.548(101) et seq, which became effective March 31, 1977. The effect of 1976 PA 453, supra, was to further preempt the civil rights field of regulation to the exclusion of municipal involvement except as authorized or certified by the Civil Rights Commission. In People v Llewellyn supra, the Supreme Court held that: 'A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.' 401 Mich 314, 322 (Footnotes Omitted) The intention of the legislature to further preempt municipal regulation in the area of civil rights is found in the language of the act itself as well as in its legislative history. In defining the powers and duties of the commission, 1976 PA 453, supra, Sec. 601 provides in part: '(1) The Commission shall: (g) Request the services of a department or agency of the state or a political subdivision. '(h) Promote and cooperate with a public or governmental agency as in its judgment will aid in effectuating the purposes of this act and the state constitution of 1963. '(i) Establish and promulgate rules governing its relationship with local commissions, and establish criteria for certifying local commissions for the deferring of complaints.' These provisions clearly indicate that local governmental unit involvement depends upon 1) Commission request, 2) Commission judgment as to that unit's ability to effectuate the purposes of the act, or 3) Commission certification of a local commission for deferring of complaints according to Commission promulgated rules and Commission-established criteria. In defining the powers and duties of the Department of Civil Rights, 1976 PA 453, supra, Sec. 602, provides in part: 'The department shall: (c) Receive, initiate, investigate, conciliate, adjust, dispose of, issue charges, and hold hearings on complaints alleging a violation of this act, and approve or disapprove plans to correct past discriminatory practices which have caused or resulted in a denial of equal opportunity with respect to groups of persons protected by this act. (e) Cooperate or contract with persons and state, local, and other agencies, both public and private, including agencies of the federal government and of other states.' These provisions indicate that the investigatory and conciliation functions, among others, are vested in the Department of Civil Rights with local agency involvement coming only through cooperation or contract with the Department. In addition, 1976 PA 453, supra, Sec. 804 expressly repeals the fair housing act of 1968, 1968 PA 112, MCLA 564.101 et seq; MSA 26.1300(101) et seq, which was an act to prevent discrimination in real property transactions on the basis of race, color, religion, or national origin. Chapter 6 of 1968 PA 112, supra, provided for the establishment of local commissions and for the establishment and enforcement of local ordinances not in conflict with the act, and specified the authority of these local entities. As previously noted, 1976 PA 453, supra, repealed and replaced 1968 PA 112, supra. The replacing act contains no provision for the establishment of local commissions, except as authorized or certified by the Civil Rights Commission pursuant to Sec. 601(1)(i). Prior to the passage of 1976 PA 453, supra, one proposed version of the act did contain a grant of authority to local units of government similar to that contained in Chapter 6 of 1968 PA 112, supra. See Chapter 8, Secs. 801-810 of substitute 1975 House Bill 4055(H-1). Section 802 of Substitute House Bill 4055(H-1) authorized a political subdivision to adopt an ordinance to prohibit discrimination not in conflict with the act; Sec. 801(1) authorized a political subdivision to create a local commission on human rights; and Sec. 809(2) authorized a political subdivision to provide for criminal enforcement of an ordinance adopted pursuant to Sec. 802. The above language was continued in the following three substitute bills, (H-2), (H-3), and (H-4), but was deleted in Substitute House Bill 4055 (H-5) and did not appear in the final version, Reprint Substitute House Bill 4055, (H-6) R-1, as passed by the House of Representatives, 1976 HJ 3302 (11-30-76) and, ultimately, as enacted into law. Thus, the language and legislative history of 1976 PA 453, supra, evidence a legislative intention not to confer authority upon local units of government to enforce a civil rights ordinance civilly or criminally. It also evidences an unequivocal legislative intent to preempt local regulation, investigation, enforcement, mediation or conciliation, absent a Civil Rights Commission authorization or certification. Clearly, the people through Const 1963, art 5, Sec. 29, together with the legislative enactment of 1976 PA 453, supra, have saved to the state all regulation, enforcement and control functions in the civil rights area. Accordingly, it is my opinion that municipalities are completely preempted by the state in the area of civil rights enforcement and regulation. To the extent that they hold otherwise, OAG Nos 4195, 4211 and 4585, supra, are hereby deemed superseded by 1976 PA 453, supra, and this opinion. 3. Since the state has preempted the field in the area of civil rights enforcement, municipalities and their local commissions are limited to performing educational, counselling, and advisory functions, OAG No 4195, supra, unless their authority is broadened by state Civil Rights Commission authorization or certification, 1976 PA 453, supra, Sec. 601(1)(i). As previously noted, the investigation, conciliation, and mediation functions have been expressly vested in the state Department of Civil Rights to the exclusion of municipal involvement by 1976 PA 453, supra, Sec. 602(c), absent the delegation of such functions by the Commission pursuant to 1976 PA 453, supra, Sec. 601(1)(i). Any direct enforcement or regulatory action by a municipality in the civil rights area is prohibited. Therefore, in answer to question 3, it is my opinion that municipalities and municipal human relations commissions are limited to performing educational, counseling and advisory roles in the area of civil rights enforcement absent authorization from, or certification by, the Civil Rights Commission for the performance of further functions. 4. The fourth question, the constitutionality of the Detroit Human Rights Commission, must be answered with reference to the holdings of this opinion. It has been determined that 1) the Michigan Civil Rights Commission has plenary power in the area of civil rights enforcement, 2) the state civil rights statute, 1976 PA 453, supra, preempts and precludes the passage of local civil rights ordinances, and 3) the only function of a local commission is to advise, educate and counsel without Commission authorization or certification. I note, comparatively, that the Detroit Charter, art 7, ch 10, Sec. 7-1004(1) provides: 'Subject to policies established by the commission, the department shall: '1. Investigate complaints of unlawful discrimination against any person because of race, color, creed, national origin, age, handicap, sex, or sexual orientation in violation of any ordinance or any law within the city's jurisdiction to enforce; and secure equal protection of civil rights without discrimination. The city shall implement this section by ordinance. The human rights department may cooperate with other civil rights agencies in the resolution of complaints where jurisdiction is concurrent.' It thus appears that this provision of the Detroit Charter is in direct conflict with the findings of this opinion, and as such is preempted by the state statute. It must be noted that the Detroit Human Rights Commission may educate, counsel, and request voluntary compliance with the provisions of the civil rights act of 1976, PA 453, supra. All direct enforcement, however, must be initiated through the state Civil Rights Commission. Therefore, it is my opinion that it is not within the jurisdiction of the City of Detroit's Human Rights Commission to enforce the provisions of Sec. 7-1004(1), supra. 5. The fifth question must similarly be answered with reference to the holdings of this opinion. Section 5.1 of the City of Wayne Fair Housing Ordinance, which speaks to the civil enforcement powers of the Human Relations Commission, provides: 'The Human Relations Commission created by Ordinance No. 31 shall have all the powers and duties within its geographical jurisdiction which the State Commission has under provisions of Chapter 4 of Act No. 112, Public Acts of 1968, State of Michigan; provided however, that said Human Relations Commission shall not issue cease and desist orders without first obtaining the written approval of the State Commission as required by the provisions of Chapter 6 of Act No. 112.' The referenced powers would enable local commissions to petition a circuit court for temporary relief and issue appropriate orders following public hearings such as requiring record keeping and reporting, and to petition the circuit court for an order awarding damages or an order requiring the sale or lease of real property. These powers are exercisable free from any state Civil Rights Commission review or approval. As previously stated, this form of municipal enforcement in the area of civil rights enforcement has been preempted by state law and, therefore, cannot stand. In addition, the City of Wayne Ordinance was enacted pursuant to specific enabling provisions of the fair housing act of 1968, 1968 PA 112, supra. That act, having been subsequently repealed, 1976 PA 453, supra, Sec. 804, must be considered as though it never existed, except for purposes of actions commenced, prosecuted, and concluded while it was effective. McDowell v Fuller, 183 Mich 639; 150 NW 353 (1915); Ex parte McCardle, 74 US (7 Wall) 506; 19 L Ed 2d (1868). Further, the repealed enabling provisions were not reenacted in 1976 PA 453, supra, which replaced 1968 PA 112, supra. Therefore, the City of Wayne Ordinance is contrary to the legislative scheme which divests local control over civil rights enforcement. Accordingly, it is my opinion that the City of Wayne Fair Housing Ordinance is not in conformity with Michigan law. Frank J. Kelley Attorney General