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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)



Opinion No. 6125

February 10, 1983


Impact of intent to appropriate monies in the future upon court reorganization


Future funding of court reorganization by Legislature

1961 PA 236, Sec. 9947 states an intent upon the part of the Legislature to fund reorganization of the courts. The amount of state appropriations for the reorganization of the courts must be determined by each Legislature.

Failure of the Legislature to appropriate sufficient funds for reorganization of the courts does not compel the termination of the funding for other courts.

Honorable Basil W. Brown

State Senator

The Capitol

Lansing, Michigan

You have asked for my opinion concerning an amendment to the Revised Judicature Act of 1961, 1961 PA 236, MCLA 600.101 et seq; MSA 27A.101 et seq. 1980 PA 438 amended 1961 PA 236, supra, to add section 9947, providing in pertinent part:

'(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. (1)

(2) If the legislature does not appropriate sufficient funds to comply with subsection (1) for any fiscal year, the funds which are necessary for the continued implementation of sections 304, 555, 563, 564, 592, 593, 594, 595, 821, 8121a, 8202, 8272, 8273, 8275, 9104, 9943, and section 13, 31, 32, 34, and 35 of Act No. 369 of the Public Acts of 1919, as amended, being sections 725.13, 725.31, 725.32, 725.34, and 725.35 of the Michigan Compiled Laws, shall terminate on September 30 of the fiscal year immediately preceding the fiscal year for which sufficient funds have not been appropriated.' (Emphasis added.)

With respect to the quoted statutory provisions, you have asked whether the jurisdiction of the Detroit and Wayne County Courts would be jeopardized if the Legislature should fail to appropriate sufficient funds to partially finance the court system in accordance with subsection (1) and thereby trigger the cutoff of funds provided in subsection (2).

As the emphasized above-quoted language indicates, subsection (2) purports to condition the continued funding required for the enumerated statutory sections of 1961 PA 236, supra, and 1919 PA 369, supra, upon the Legislature's fulfilling the statutorily expressed intention, set forth in subsection (1), to finance the court system on a statewide basis. Reference to those sections discloses the potential impact of section 9947(2) of the Revised Judicature Act of 1961, supra.

1980 PA 438 was one of a package of six public acts (2) which, inter alia, reorganized the courts in Wayne County under a scheme whereby those courts would be financed substantially by the state. The enumerated sections cited in subsection (2) were either amended or added to the law by that package of public acts. For example, 1919 PA 369, MCLA 725.1 et seq; MSA 27.3941 et seq, Sec. 34 was added (3) to provide that compensation of employees of the state judicial council serving in recorder's court would be paid by the state. Section 13 of 1919 PA 369, supra, was amended to provide that the state would reimburse the county for the annual salary paid to each judge of the Municipal Court of Record.

In contrast, section 304 of the Revised Judicature Act of 1961, supra, was amended to revise the scheme for compensating judges of the Court of Appeals; however, under both the prior and the amended versions thereof, the responsibility for paying that compensation rested with the state. A termination of such funds would serve to eliminate funding for the Court of Appeals. (4)

As the foregoing examples illustrate, if funding were to be terminated for the enumerated sections in accordance with section 9947(2) of the Revised Judicature Act of 1961, supra, funds would be cut off for activities which have historically been financed by the state, as well as for activities which have historically been financed by local government. The full impact of any such indiscriminate cutoff of funds would be devasting to the operation of the state's judicial system. However, section 9947 of the Revised Judicature Act of 1961, supra, is not capable of enforcement according to its terms.

Section 9947(1) purports to mandate the Legislature to appropriate funds in future years for a particular purpose. Section 9947(2) purports to mandate that, under certain circumstances, the Legislature shall not appropriate funds for particular purposes. Neither mandate may bind the Legislature. These subsections, at most, merely express an intention of the Legislature with regard to appropriations which will be made in future years. In Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613, 620-621; 221 NW2d 345 (1974), the Court described the process of budgeting and appropriations as follows:

'Although the Michigan Legislature may at times place authorization provisions and appropriation provisions in the same bill, we believe that any provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization--an intention to appropriate. The dynamics of the budget change from year to year on the basis of the revenues derived and the expenditures required by the people of Michigan. Responsible fiscal policy consequently also requires a yearly reassessment of revenues, spending goals and priorities.

'The Michigan Constitution of 1963 brought to this state new measure designed to require an annual review of the budget and to provide for annual fiscal accountability in both the legislature and executive branches. . . .' (Footnotes omitted. Emphasis added.)

One legislature is without authority to limit or restrict the power of its successor to make such appropriations as the exigencies of the time may warrant. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933). In Atlas v Wayne County Board of Auditors, 281 Mich 596, 599; 275 NW 507 (1937), the court observed:

'The power to amend and repeal legislation as well as to enact it is vested in the legislature, and the legislature cannot restrict or limit its right to exercise the power of legislation by prescribing modes of procedure for the repeal or amendment of statutes; nor may one legislature restrict or limit the power of its successors. One legislature cannot enact irrepealable legislation or limit or restrict its own power, or the power of its successors, as to the repeal of statutes; and an act of one legislature is not binding on, and does not tie the hands of, future legislatures. . . .' (Citations omitted.)

Based upon the foregoing authorities, it is my opinion that any failure of the Legislature to appropriate the funds specified in 1961 PA 236, Sec. 9947(1), supra, does not operate to compel the termination of funding for the above-enumerated statutory sections as provided in 1961 PA 236, Sec. 9947(2), supra. Each legislature must determine the purposes for which funds will be appropriated.

Frank J. Kelley

Attorney General

(1) Section (1)(b)-(e) provide for increases in that level of state funding of 'all court operational expenses' to at least 40%, in the fiscal year beginning October 1, 1984, and to at least 60%, 80% and 100%, respectively, in the fiscal years beginning in 1985, 1986 and 1988.

(2) The five other tie-barred public acts are 1980 PA 439, 1980 PA 440, 1980 PA 441, 1980 PA 442 and 1980 PA 443.

(3) Section 34 was added by 1980 PA 440.

(4) Any such termination of funds would conflict with Const 1963, art 6, Sec. 18, which provides in pertinent part:

'Salaries of justices of the supreme court, of the judges of the court of appeals, of the circuit judges within a circuit, and of the probate judges within a county or district, shall be uniform, and may be increased but shall not be decreased during a term of office except and only to the extent of a general salary reduction in all other branches of government.' (Emphasis added.)

A termination of judicial funding, which impaired the courts' very ability to function, might also violate the constitutional separation of powers and the constitutional co-equality of the judiciary. Const 1963, art 3, Sec. 2 and art 6, Sec. 1. In Wayne Circuit Judges v Wayne County, 386 Mich 1, 9; 190 NW2d 228 (1971), cert den'd 405 US 923; 92 S Ct 961; 30 L Ed 2d 794 (1972), the court set forth its view that:

"Expressed in other words, the Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a co-equal, independent Branch of our Government. This principle has long been recognized, not only in this Commonwealth but also throughout our Nation." (Emphasis added.)

The court reiterated its adherence to that principle in Livingston County v Livingston Circuit Judge, 393 Mich 265, 273; 225 NW2d 352 (1975).


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