McNeil v. Charlevoix County

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

JULY 21, 2009

KENT A. MCNEIL, FRANKLIN E.
FISHER, and
ROGER GRIFFIN,

Plaintiffs,

and

SCOTT WAY and JEFF LEGATO,

Plaintiffs-Appellants,

v No. 134437

CHARLEVOIX COUNTY and
NORTHWEST MICHIGAN COMMUNITY
HEALTH AGENCY,

Defendants-Appellees.

BEFORE THE ENTIRE BENCH

WEAVER, J.

At issue in this case is whether MCL 333.2441(1) authorizes a local health

department to create, and a county board of commissioners to approve, regulations

that control smoking in the workplace. Additionally at issue is whether such a

regulation, providing employees with a private cause of action to seek its

enforcement, interferes with Michigan’s at-will employment doctrine.
 I. The Court of Appeals Decision

The Court of Appeals concluded that the regulation at issue is authorized by

statute and was promulgated in a manner consistent with the statutory

requirements. Furthermore, the Court of Appeals concluded that the private cause

of action created by the regulation fits within public policy exceptions to

Michigan’s at-will employment doctrine. We agree with the Court of Appeals’

conclusions. In affirming, we adopt as our own the Court of Appeals’ opinion,

McNeil v Charlevoix Co, 275 Mich App 686; 741 NW2d 27 (2007)1:

In this action for declaratory relief, plaintiffs appeal as of
right the trial court’s order denying their motion for summary
disposition. We affirm.

I. Basic Facts and Procedural History

Defendant Northwest Michigan Community Health Agency
(NMCHA) is a multicounty district health department organized by
Antrim, Charlevoix, Emmet, and Otsego counties under Part 24 of
the Public Health Code (PHC), MCL 333.2401 et seq.1 In purported
furtherance of its duty to protect the public health and welfare in its
district, the NMCHA promulgated what it entitled the Public Health
Indoor Air Regulation of 2005 (the regulation). In addition to
prohibiting smoking in all public places, the regulation requires
employers who do not wholly prohibit smoking at an enclosed place
of employment to designate an NMCHA-approved smoking room,
which is required by the regulation to be “a separate enclosed area
that is independently ventilated so that smoke does not enter other
non-smoking areas of the worksite.” The regulation additionally

1
We have eliminated only that portion of the Court of Appeals opinion that
addresses the issue of preemption, because we do not believe that a preemption
analysis is necessary for the resolution of the issues before us at this time. We do
not disturb the Court of Appeals ruling on that issue.

2
prohibits an employer from discharging, refusing to hire, or
otherwise retaliating against an employee for exercising his or her
right to the smoke-free environment afforded by the regulation.

After the regulation was approved by each of the four
counties, plaintiffs, each of whom resides or operates a business
within defendant Charlevoix County, brought this action to
invalidate the regulation by judicial declaration that the NMCHA
was without authority to promulgate such a regulation and that the
regulation itself was preempted by Part 126 of the PHC, MCL
333.12601 et seq., which prohibits smoking in buildings used by the
public except in designated areas. In seeking summary disposition
on these grounds, plaintiffs argued that nothing in Part 126 of the
PHC, which is also known as the Michigan Clean Indoor Air Act
(MCIAA),2 authorizes a local health department to enforce or
augment the smoking restrictions set by the MCIAA. Plaintiffs
further argued that § 12605 of the MCIAA, MCL 333.12605, grants
owners and operators of public places the discretion to choose
whether to maintain a smoking section or remain smoke-free, and
that this discretion to permit smoking in public places constitutes a
statutorily conferred right that a local health department cannot
annul by regulation. Moreover, plaintiffs argued, where the owner
or operator of a public place chooses to have a designated smoking
area, § 12605 requires only that existing physical barriers and
ventilation be used to minimize the toxic effects of smoking. Thus,
insofar as the NMCHA regulation requires that smoking be restricted
to a separate, enclosed area with independent ventilation, it conflicts
with the MCIAA and must be found to be invalid.

Citing this Court’s decision in Michigan Restaurant Ass’n v
City of Marquette, 245 Mich App 63; 626 NW2d 418 (2001),
plaintiffs further asserted that smoking is an issue better suited to
regulation on a statewide basis, and that local regulation must
therefore yield to the preemptive provisions of the MCIAA.
Plaintiffs additionally argued that, to the extent the regulation
impinges on the common-law right of an employer to discharge an
employee at will, the regulation violates public policy and is void.
The trial court, however, disagreed and denied plaintiffs’ motion.
This appeal followed.

3
 II. Analysis

Plaintiffs assert that the trial court erred in denying their
motion for summary disposition. In doing so, plaintiffs again argue
that the NMCHA lacked the authority to promulgate regulations
restricting smoking and that local regulation was, in any event,
preempted by the MCIAA. We disagree.

A. Standard of Review

Resolution of the questions presented on appeal requires the
interpretation of statutes, which is a question of law that this Court
reviews de novo. See Michigan Coalition for Responsible Gun
Owners v Ferndale, 256 Mich App 401, 405; 662 NW2d 864 (2003).
When interpreting a statute, this Court’s goal is to ascertain and give
effect to the intent of the Legislature by applying the plain language
of the statute. Gladych v New Family Homes, Inc, 468 Mich 594,
597; 664 NW2d 705 (2003).

B. Overview of the Michigan Clean Indoor Air Act

The MCIAA, enacted in 1986 as Part 126 of the PHC,3
prohibits smoking “in a public place or at a meeting of a public
body, except in a designated smoking area.” MCL 333.12603.
Although seemingly broad in scope, “public place,” as defined by
the MCIAA, renders the act inapplicable to most private-sector
workplaces and public areas that are not themselves enclosed. See
MCL 333.12601(m).4 Also exempt from the requirements of the act
are food service establishments,5 MCL 333.12603(3), private
educational facilities “after regularly scheduled school hours,” MCL
333.12603(4), and enclosed private rooms or offices occupied
exclusively by a smoker, “even if the room or enclosed office may
be visited by a nonsmoker,” MCL 333.12601(2). Further, the
MCIAA expressly does not apply to “a room, hall, or building used
for a private function if the seating arrangements are under the
control of the sponsor of the function and not under the control of
the state or local government agency or the person who owns or
operates the room, hall, or building.” MCL 333.12603(2).

In all other public places in which smoking is not “prohibited
by law,” the MCIAA permits a “person who owns or operates a
public place” to designate a smoking area. MCL 333.12605(1).6 In
those public places in which an owner or operator elects to designate

4
a smoking area, the act requires that “existing physical barriers and
ventilation systems shall be used to minimize the toxic effect of
smoke in both smoking and adjacent nonsmoking areas.” MCL
333.12605(1).7 The act further requires that seating within the
public place be arranged “to provide, as nearly as practicable, a
smoke-free area,” MCL 333.12607(b), and that the owner or
operator develop, implement, and enforce “a written policy for the
separation of smokers and nonsmokers which provides, at a
minimum,” for a procedure to receive, investigate, and take action
on complaints, and that ensures that nonsmokers will be located
closest to the source of fresh air and that special consideration will
be given to individuals with a hypersensitivity to tobacco smoke,
MCL 333.12605(3); see also MCL 333.12607(c).

C. Authority of the NMCHA to Promulgate Smoking Regulations

In challenging the validity of the regulation promulgated by
the NMCHA, plaintiffs assert that nothing in Part 126 of the PHC
authorizes a local health department to enforce or augment the
smoking restrictions set by the MCIAA.8 Plaintiffs argue that,
pursuant to MCL 333.12613, implementation and enforcement of the
act and rules promulgated thereunder is a power within the exclusive
province of the Michigan Department of Community Health.
Plaintiffs’ argument in this regard, however, is not sustained by the
plain language of § 12613(2) of Part 126, which expressly provides
that “the department may authorize a local health department to
enforce this part and the rules promulgated under this part.” MCL
333.12613(2).

Moreover, even if the responsibility for the implementation
and enforcement of the restrictions established by Part 126 had been
exclusively granted to the Department of Community Health, that
would not, by itself, deny a local health department the authority to
promulgate, implement, and enforce similar regulations of its own
making. As previously noted, Part 24 of the PHC authorizes the
creation of local health departments such as the NMCHA. See MCL
333.2415 and 333.2421. Pursuant to § 2433 of Part 24, such
departments are charged with the duty to

“continually and diligently endeavor to prevent disease, prolong life,
and promote the public health through organized programs,
including prevention and control of environmental health hazards;
prevention and control of diseases; prevention and control of health

5
problems of particularly vulnerable population groups; development
of health care facilities and health services delivery systems; and
regulation of health care facilities and health services delivery
systems to the extent provided by law. [MCL 333.2433(1).]”

The regulation at issue is consistent with these duties and is
authorized to be promulgated by the NMCHA under §§ 2435 and
2441 of Part 24, which provide that a local health department may
“[a]dopt regulations to properly safeguard the public health,” MCL
333.2435(d), or regulations that “are necessary or appropriate to
implement or carry out the duties or functions vested by law in the
local health department,” MCL 333.2441(1). See also MCL
333.2433(2)(a) (which provides that a local health department “shall
. . . [i]mplement and enforce laws for which responsibility is vested
in the local health department”). As argued by defendants, the only
limitation placed by the Legislature on the promulgation and
adoption of such regulations is that they “be at least as stringent as
the standard established by state law applicable to the same or
similar subject matter.” MCL 333.2441(1).9 The regulation at issue
here, being more restrictive than the standards set by the MCIAA,
meets this requirement.

We recognize plaintiffs’ argument that, under a plain reading
of § 2433(1), the fulfillment of the duties imposed by that section on
local health departments is arguably limited to the institution of
programs. The section must, however, be read in context and in
light of the purpose of both Part 24 and the PHC in general. See
Macomb Co Prosecuting Attorney v Murphy, 464 Mich 149, 159;
627 NW2d 247 (2001). As noted earlier, MCL 333.2435(d)
expressly grants a local health department authority to “[a]dopt
regulations to properly safeguard the public health.” Plaintiffs assert
that the Legislature has also granted local health departments more
specific powers.10 However, that does not lessen the general duty
and authority of those agencies to protect the public health, MCL
333.2433(1), and to adopt and implement regulations for that
purpose, MCL 333.2435(d) and 333.2441(1). In fact, the
preliminary provisions of the PHC require that the code and each of
its various parts “be liberally construed for the protection of the
health, safety, and welfare of the people of this state.” MCL
333.1111(2); see also MCL 333.2401(2) (stating that the “general
definitions and principles of construction” contained in article 1 of
the PHC, MCL 333.1101 et seq., are “applicable to all articles in this
code”), and Frens Orchards, Inc v Dayton Twp Bd, 253 Mich App

6
129, 134-135; 654 NW2d 346 (2002) (applying the preliminary
provisions of the PHC to Part 124 of the code, regulating agricultural
labor camps). Because, when so construed, the provisions of Part 24
evince a legislative intent to permit regulation of the kind at issue
here, we reject plaintiffs’ assertion that the NMCHA was without
authority to promulgate the regulation.

***

E. Employment at Will

Finally, plaintiffs argue that because the regulation’s
provision that an employer cannot discharge, refuse to hire, or
otherwise retaliate against a person for exercising his or her right to
a smoke-free environment adversely affects the common-law right
of an employer to discharge an employee at will, the NMCHA
regulation violates public policy and is therefore void. Again, we
disagree.

Plaintiffs correctly argue that, in the absence of a contract
providing to the contrary, employment is usually terminable by the
employer or the employee at any time, for any or no reason
whatsoever. Suchodolski v Michigan Consolidated Gas Co, 412
Mich 692, 694-695; 316 NW2d 710 (1982). It is well settled,
however, that an employer is not free to discharge an employee at
will when the reason for the discharge contravenes public policy.
See id. at 695.

In Suchodolski, supra at 695-696, our Supreme Court
provided three examples of public-policy exceptions to an
employer’s right to discharge an at-will employee under the
employment at will doctrine. An at-will employee’s discharge
violates public policy if any one of the following occurs: (1) the
employee is discharged in violation of an explicit legislative
statement prohibiting discharge of employees who act in accordance
with a statutory right or duty; (2) the employee is discharged for the
failure or refusal to violate the law in the course of employment; or
(3) the employee is discharged for exercising a right conferred by a
well-established legislative enactment. Id.

Although not itself a legislative enactment or statement, the
regulation at issue here provides employees with certain specified
rights and was, as required by MCL 333.2441(1), approved for

7
application by the governing bodies of each of the various counties
served by the NMCHA.17 Given these facts, and considering the
public policy of minimizing the effects of smoking evinced by the
Legislature through its enactment of Part 126 and § 12905 of Part
129 of the PHC, the regulation’s restriction of the general right to
discharge an employee at will is consistent with the exceptions to
that doctrine set forth in Suchodolski. Accordingly, we reject
plaintiffs’ claim that the regulation’s prohibition in this regard itself
violates public policy and is therefore void.

Affirmed.
_______________________________________________________________________________

1
Pursuant to § 2415 of Part 24, “[t]wo or more counties . . . ,
by a majority vote of each local governing entity and with approval
of the [state] department [of community health], may unite to create
a district health department.” MCL 333.2415.
2
See MCL 333.12616.
3
See 1986 PA 198, effective January 1, 1987.
4
MCL 333.12601(m)(i) defines “public place” as

“[a]n enclosed, indoor area owned or operated by a state or local
governmental agency and used by the general public or serving as a
place of work for public employees or a meeting place for a public
body, including an office, educational facility, home for the aged,
nursing home, county medical care facility, hospice, hospital long-
term care unit, auditorium, arena, meeting room, or public
conveyance.”

Enclosed indoor areas that are not owned or operated by a
state or local governmental unit, but are included in the definition of
“public place” if used by the general public, include educational
facilities, homes for the aged, nursing homes, county medical care
facilities, hospices, hospital long-term care units, auditoriums,
arenas, theaters, museums, concert halls, and “[a]ny other facility
during the period of its use for a performance or exhibit of the arts.”
MCL 333.12601(m)(ii)(A)-(H).
5
As discussed infra, smoking in food service establishments
is nonetheless regulated under Part 129 of the PHC, MCL 333.12905
et seq.

8
 6
Note, however, that the MCIAA places slightly more
stringent requirements on two types of facilities: child care and
health facilities. In child care facilities or on property under the
control of a child care facility, smoking is completely prohibited.
MCL 333.12604. In health facilities, smoking is allowed only in a
designated area that is “enclosed and ventilated or otherwise
constructed to ensure a smoke free environment in patient care and
common areas.” MCL 333.12604a(2)(b). Further, in a health
facility, patients may smoke only if a “prohibition on smoking would
be detrimental to the patient’s treatment as defined by medical
conditions identified by the collective health facility medical staff.”
MCL 333.12604a(2)(a). Patients who are permitted to smoke must,
however, be in a separate room from nonsmoking patients. Id.
7
However, “[i]n the case of a public place consisting of a
single room, the state or governmental agency or person who owns
or operates the single room” is considered to be in compliance with
the act “if ½ of the room is reserved and posted as a no smoking
area.” MCL 333.12605(2).
8
Although the trial court’s failure to address the authority of
the NMCHA to promulgate the regulation at issue renders the issue
unpreserved for review on appeal, Fast Air, Inc v Knight, 235 Mich
App 541, 549; 599 NW2d 489 (1999), this Court may review an
unpreserved issue if it is one of law and the facts necessary for
resolution of the issue have been presented, Adam v Sylvan Glynn
Golf Course, 197 Mich App 95, 98-99; 494 NW2d 791 (1992). As
presented both below and on appeal, the question whether the
NMCHA is authorized to develop regulations restricting smoking
presents an issue of statutory interpretation, which is a question of
law for which the facts necessary for its resolution are sufficiently
present to permit this Court’s review. See Michigan Coalition,
supra at 405.
9
Unlike Part 24 of the PHC, the regulatory enabling statute at
issue in DABE, Inc v Toledo-Lucas Co Bd of Health, 96 Ohio St 3d
250; 773 NE2d 536 (2002), does not contain a similar statement
evincing a legislative intent to permit coequal regulation of the
public health by a local health department. Thus, we reject
plaintiffs’ reliance on that case as support for their assertion that the
NMCHA was without authority to promulgate the regulation at issue
in this case.

9
 10
See, e.g., MCL 333.2455, which permits a local health
department to “issue an order to avoid, correct, or remove . . . a
building or condition which violates health laws or which the local
health officer . . . reasonably believes to be a nuisance, unsanitary
condition, or cause of illness.”

***
17
MCL 333.2441(1) provides, in relevant part, that
regulations adopted by a local health agency “shall be approved or
disapproved by the local governing entity.”
______________________________________________________________________________

II. Response to Justice Markman’s Partial Concurrence and Partial Dissent

Justice Markman agrees that the workplace smoking regulation at issue is

“consistent with MCL 333.2433(1), at least to the extent it is designed to ‘prevent

disease, [and] prolong life.’” Post at 8. Therefore, Justice Markman concludes

that the county boards of commissioners acted within their statutory authority

when regulating smoking in this particular case. Nevertheless, Justice Markman

contends that the anti-retaliation section of this regulation is invalid because it

exceeds the legislative authority granted to the county boards of commissioners

and, alternatively, because it contravenes the law of at-will employment in this

state.

The anti-retaliation section of this regulation essentially ensures that an

employee will not be terminated for asserting rights that were granted by the

regulation. The Michigan Constitution provides that “[b]oards of supervisors shall

have legislative, administrative and such other powers and duties as provided by

law.” Const 1963, art 7, § 8. The plain language of the PHC itself places a broad

10
duty on local health departments to take necessary actions for preventing and

controlling hazards to human health. Contrary to the partial dissent, we believe

that the county boards of commissioners possessed the authority to adopt the anti-

retaliation section of this regulation.

The Legislature grants county boards of commissioners the authority to

“pass ordinances that relate to county affairs and do not contravene the general

laws of this state . . . and pursuant to section 10b provide suitable sanctions for the

violation of those ordinances.” MCL 46.11(j). Section 10b provides that county

boards of commissioners may impose a sanction of imprisonment for not more

than 90 days or a fine of not more than $500 for the violation of an ordinance.

MCL 46.10b(1). Additionally, through the PHC, the Legislature provides county

boards of commissioners with the authority to approve local health department

regulations that are “at least as stringent as the standard established by state

law . . . .” MCL 333.2441(1).

It is important to note that the Legislature explicitly instructs that the PHC

is to be “liberally construed for the protection of the health, safety, and welfare of

the people of this state.” MCL 333.1111(2). The PHC expressly authorizes local

health departments to “adopt regulations to properly safeguard the public health

and to prevent the spread of diseases and sources of contamination.” MCL

333.2435(d). In addition, the PHC mandates that local health departments

“continually and diligently endeavor to prevent disease, prolong life, and promote

the public health through organized programs, including prevention and control of

11
environmental health hazards; prevention and control of diseases; [and]

prevention and control of health problems of particularly vulnerable population

groups . . . .” MCL 333.2433(1) (emphasis added). Furthermore, the PHC

expressly directs local health departments to “[i]mplement and enforce laws for

which responsibility is vested in the local health department.” MCL

333.2433(2)(a).

As Justice Cavanagh correctly points out, county boards of commissioners

adopting regulations by majority vote are essentially functioning as local

legislative bodies. In this case, the local health department, the NMCHA, created

the regulation and submitted it to the boards for approval, just as MCL

333.2441(1) requires. The submitted regulation provides for a private cause of

action against an employer who discharges an employee for asserting rights

created by the regulation.

We have already concluded that the Legislature has not expressly limited

the exact manner in which a local health department prevents and controls health

hazards within its communities. In fact, local health departments are explicitly

directed to take action to safeguard the public health. See MCL 333.2435(d);

MCL 333.2433(1); MCL 333.2433(2)(a). We conclude that the anti-retaliation

provision of this workplace smoking regulation is another method used by the

local health department to prevent and control the health hazards caused by

secondhand smoke inhalation.

12
 In Mack v Detroit, 467 Mich 186, 189; 649 NW2d 47 (2002), this Court

held that a city charter providing a private cause of action against the city itself for

discrimination based on sexual orientation contravenes the government tort

liability act and, therefore, such a cause of action will not be recognized. This

Court reasoned that “a governmental agency is immune unless the Legislature has

pulled back the veil of immunity and allowed suit by citizens against the

government.” Id. at 195. Additionally, this Court noted that exceptions to

governmental immunity are narrowly construed. Id. at 196 n 10. However, the

majority in Mack expressly limited its analysis to the city’s lack of authority in

light of governmental immunity law and declined to address the question whether

a city can create a private cause of action against nongovernmental entities. Id. at

197 n 12, 194 n 6.

Justice Markman correctly observes that Mack involved a city’s authority to

create a private cause of action, while this particular case involves a county’s

authority to do so. Post at 11 n 4. However, we note that in Mack, the majority

placed weight on the lack of legislative authorization for the city to create a cause

of action and the limitations placed on municipalities by the Legislature. Mack,

supra at 195-197. Here, the Legislature has expressly placed the affirmative duty

on local health departments to take measures to safeguard human health, MCL

333.2433(1), and authorizes those departments to do so through regulations. MCL

333.2435(d). Again, the Legislature has explicitly instructed that the PHC be

liberally construed. MCL 333.1111(2). The regulation imposes smoking

13
restrictions under the stated purpose of protecting “the public health and welfare

by regulating smoking in public places and places of employment and recreation

in the counties which comprise this multi-county health department.” Section

1011 of the regulation states that an employer may not retaliate against any

employee, potential employee, or customer for exercising the right to a healthy

work environment provided pursuant to the regulation. Furthermore, § 1012(F)

provides that an employee or other private citizen may bring legal action to

enforce this right.

While Justice Markman acknowledges the constitutional and statutory

authority granted to county boards of commissioners, he alternatively concludes

that the private cause of action provision of the regulation at issue is invalid on the

basis that it “contravenes the law of at-will employment in this state.” Post at 10.

We, instead, agree with the Court of Appeals that the private cause of action in

this particular regulation falls within Suchodolski’s three examples of public

policy exceptions to the common law at-will employment doctrine.

In Sucholdolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695;

316 NW2d 710 (1982), this Court held that while either party to an employment

contract for an indefinite term may generally terminate the employment at any

time for any, or no, reason, “some grounds for discharging an employee are so

contrary to public policy as to be actionable.” Examples of exceptions to

Michigan’s at-will employment doctrine, as explained in Suchodolski, include

“adverse treatment of employees who act in accordance with a statutory right or

14
duty,” an employee’s “failure or refusal to violate a law in the course of

employment,” and an employee’s “exercise of a right conferred by a well-

established legislative enactment.” Id. at 695-696.

Because the regulation grants employees the right to a smoke-free work

environment, the retaliatory discharge of an employee exercising this right would

constitute “adverse treatment of employees who act in accordance with a statutory

right or duty.” Suchodolski, supra at 695. Citing Dudewicz v Norris-Schmid, 443

Mich 68, 80; 503 NW2d 645 (1993), Justice Markman argues that if the regulation

is enforceable under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et

seq., then a public policy claim for its violation is not viable. Post at 15 n 8. We

first note that Dudewicz involved an employee who filed a criminal complaint

against a fellow employee and was then discharged. In this case, we are simply

concerned with the county’s authority to adopt the anti-retaliation provision and

provide for a private cause of action in order to enforce its regulations, and the

WPA does not effectively negate the authority granted by the Legislature in the

PHC. Furthermore, in Dudewicz this Court only reviewed the Court of Appeals’

application of Suchodolski in light of the first example of exceptions to the at-will

employment doctrine. Id. at 72.

Because the private cause of action in the regulation also constitutes the

“exercise of a right conferred by a well-established legislative enactment,” we

disagree with Justice Markman that it is necessary to remand this case in order to

consider whether the regulation at issue may be enforced under the WPA. Part

15
126 of the PHC was clearly enacted by the Legislature in an effort to minimize the

toxic effect of smoking. See MCL 333.12605. Pursuant to the authority granted

by the Legislature, the county boards of commissioners adopted the regulation in

an effort to further that same goal. Again, the regulation was adopted by the

county boards of commissioners while they were functioning as local legislative

bodies and exercising the authority granted to them by the Legislature in the PHC.

In addition, the Legislature expressly authorizes a local health department to

enforce Part 126, and rules promulgated under it, by any “appropriate action

authorized by law.” MCL 333.12613(2). Therefore, we agree with the Court of

Appeals’ conclusion that the regulation was enacted pursuant to the authority

granted by the Legislature in MCL 333.2433(1), and the plain language of MCL

333.12613(2) does not limit the enforcement of such regulations to state

departments of community health.

II. Conclusion

Given the Legislature’s statutory mandates to minimize the toxic effects of

smoking on human health, the authority granted in the PHC to local health

departments to prevent and control human health hazards and the facts of this

particular case, we disagree with the partial concurrence and partial dissent’s view

that the Suchodolski exceptions to the at-will employment doctrine cannot possibly

apply here. We, therefore, adopt the Court of Appeals opinion, which correctly

16
concluded that the NMCHA and the local boards of commissioners were

authorized to enact the regulation.

Affirmed.

Elizabeth A. Weaver
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway

17
 STATE OF MICHIGAN

SUPREME COURT

KENT A. MCNEIL, FRANKLIN E.
FISHER, and ROGER GRIFFIN,

Plaintiffs,

and

SCOTT WAY and JEFF LEGATO,

Plaintiffs-Appellants,

v No. 134437

CHARLEVOIX COUNTY and
NORTHWEST MICHIGAN COMMUNITY
HEALTH AGENCY,

Defendants-Appellees.

CAVANAGH, J. (concurring).

I concur in full with the majority opinion, including its conclusion that the

Clean Indoor Air Regulation (CIAR) should be upheld. I would hold that the

CIAR, including §§ 1010(F), 1011, and 1012(F), is within the scope of the

authority delegated by the state constitution and the applicable statutes to the

Northwest Michigan Community Health Agency (NMCHA) and the county

boards of commissioners. I further agree that the non-retaliation provision of the

CIAR, § 1011, falls within the public-policy exception to the common-law at-will

employment doctrine. I write separately in order to clarify my views on the proper
application of Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692; 316

NW2d 710 (1982), to this case and to further respond to Justice Markman’s

opinion.

I. NON-RETALIATION PROVISION

A. SUCHODOLSKI ANALYSIS

This Court asked the parties to address whether the non-retaliation

provision in the CIAR, § 1011, is consistent with Suchodolski. McNeil v

Charlevoix Co, 482 Mich 1014, 1014-1015 (2008). 1 I think that § 1011 of the

CIAR falls squarely within Suchodolski’s first example of a public policy creating

an exception to the general rule of at-will employment.

Under the common law, there is a general rule of at-will employment,

meaning that “[i]n general, in the absence of a contractual basis for holding

otherwise, either party to an employment contract for an indefinite term may

terminate it at any time for any, or no, reason.” Suchodolski, 412 Mich at 694-

695. As discussed in the majority opinion, Suchodolski recognized that, under the

common law, there is an exception to the general at-will rule when the basis for

termination is contrary to public policy. Id. at 695. Suchodolski stated that “an

exception has been recognized to [the common-law at-will employment] rule,

1
Section 1011 of the CIAR reads: “No person or employer shall discharge,
refuse to hire or in any manner retaliate against any employee, applicant for
employment or customer because such employee, applicant or customer exercises
any right to a smoke-free environment afforded by this regulation.”

2
based on the principle that some grounds for discharging an employee are so

contrary to public policy as to be actionable.” Id. In addition to explaining the

general public-policy exception, Suchodolski provided three examples of public

policies that fall within the exception. Id. at 695-696.2

I would hold that § 1011 of the CIAR falls within the first example

provided in Suchodolski of a public policy that creates an exception to the general

rule of at-will employment. The first Suchodolski example is an explicit

legislative statement that prohibits the discharge of an employee in retaliation for

that employee’s acting in accordance with a legally recognized right or duty.

Suchodolski, 412 Mich at 695. This is precisely what § 1011 is. Section § 1011

provides that “[n]o person or employer shall discharge, refuse to hire or in any

manner retaliate against any employee, applicant for employment or customer

because such employee, applicant or customer exercises any right to a smoke-free

environment afforded by this regulation.” The county boards of commissioners

that organized the NMCHA adopted the CIAR by a majority vote. They are local

legislative bodies and were exercising the legislative power granted to them by the

constitution and statutes of our state.3 Thus, the CIAR qualifies as a legislative

statement. Further, an employee’s right to a smoke-free environment is a legally

2
As discussed here, I think that § 1011 of the CIAR falls within at least the
first Suchodolski example. But even if it did not, I would hold that it is within the
general public-policy exception.
3
See Const 1963, art 7, § 8; MCL 46.11; MCL 333.2441(1).

3
recognized right under the CIAR.4 Finally, the CIAR explicitly prohibits

discharging an employee in retaliation for that employee’s exercise of a legally

recognized right. Therefore, I would hold that § 1011 of the CIAR falls within

Suchodolski’s first example of a public policy that constitutes an exception to the

common-law at-will employment doctrine. 5

4
Suchodolski referred to protection for employees acting in accordance
with a “statutory” right or duty, but, in the context of the purpose of the exception,
there is no reason to differentiate a legally recognized right or duty created by a
state statute and a legally recognized right or duty created by local law. See also
Gale v Oakland Co Bd of Supervisors, 260 Mich 399, 404; 245 NW 363 (1932),
stating that “[a]n act passed by [the county board of commissioners] pursuant to
authority delegated or conferred by the legislature has the same force as a statute
passed by the legislature itself.” (Quotation marks and citation omitted.)
5
This analysis is not inconsistent with Dudewicz v Norris-Schmid, 443
Mich 68, 78-80; 503 NW2d 645 (1993). Dudewicz held that the Whistleblowers’
Protection Act (WPA) preempted a claim under the public-policy exception to the
at-will employment rule because the WPA provides an exclusive remedy for a
violation of its non-retaliation provision. Dudewicz, 443 Mich at 78-80.
Therefore, Dudewicz limits the first Suchodolski example of a public-policy
exception to the at-will employment rule only where a legislative enactment has
not only explicitly prohibited the discharge of an employee acting in accordance
with a statutory right or duty, but also provided an exclusive remedy for violation
of that explicit prohibition. Accord Humenny v Genex Corp, 390 F3d 901, 907-
908 (CA 6, 2004) (stating that because Dudewicz limited Suchodolski’s public-
policy exception “by holding that ‘as a general rule, the remedies provided by
statute for violation of a right having no common-law counterpart are exclusive,
not cumulative,’” when applying the public-policy exception, the Court should
first determine whether there is “a well-established legislative enactment that
addresses the particular conduct at issue,” and then, if there is, address whether the
statute “provides a remedy to plaintiffs who allege violations of the statute”). To
the extent that Vagts v Perry Drug Stores, 204 Mich App 481, 485; 516 NW2d
102 (1994), held otherwise, I would overrule it.

Justice Markman asserts that I have misread Dudewicz, but I respectfully
submit that my reading of Dudewicz is the understanding advanced by the

4
Dudewicz Court, as evidenced by the opinion as a whole, and the Court of Appeals
cases relied on in Dudewicz. Justice Markman argues that Dudewicz excludes
application of the public-policy exception in all instances where a statute or
regulation “prohibits discharge in retaliation for the conduct at issue.” Post at 15 n
8. To support this proposition, he relies on the statement in Dudewicz that “‘[a]
public policy claim is sustainable . . . only where there also is not an applicable
statutory prohibition against discharge in retaliation for the conduct at issue.’”
Post at 15 n 8, quoting Dudewicz, 443 Mich at 80. That statement supports Justice
Markman’s argument if read standing alone, but in my judgment the context of the
opinion shows that the Court intended to limit the public-policy exception only in
instances in which a legislative enactment both provides an anti-retaliation
provision and also creates an exclusive remedy. Dudewicz holds that the Court of
Appeals “should have found that any public policy claim was preempted by the
application of the WPA,” reasoning that “as a general rule, the remedies provided
by statute for violation of a right having no common-law counterpart are
exclusive, not cumulative,” and because there was no common-law counterpart to
the WPA, “[t]he remedies provided by the WPA . . . are exclusive . . . .” Id. at 78-
79. The Court thus concluded that “because the WPA provides relief to [the
plaintiff] for reporting his fellow employee’s illegal activity, his public policy
claim is not sustainable.” Id. at 80. In other words, Dudewicz held that where the
WPA applies, the public-policy exception to the common-law at-will employment
doctrine is preempted because the party was afforded relief by the WPA’s
exclusive statutory remedy. This reasoning does not suggest that a non-retaliation
provision in a legislative enactment would, standing alone, preempt a public-
policy claim if the legislative enactment either did not provide a remedy or if the
remedy provided was not exclusive.

Further, this understanding of the public-policy exception is the same
understanding presented in the Court of Appeals cases cited for support in
Dudewicz, including the cases to which the Court of Appeals limited the public-
policy exception. See Dudewicz, 443 Mich at 79-80. For example, in one of those
cases, Ohlsen v DST Industries, Inc, 111 Mich App 580, 586; 314 NW2d 699
(1981), the Court stated that the public-policy exception “carve[s] out an exception
to the general rule that either party may terminate an employment at will for any
reason or no reason by providing the discharged employee a remedy where none is
provided under the statute.” (Quotation marks omitted; emphasis added.) The
Court held that the plaintiff in that case could not state a claim under the public-
policy exception, reasoning that

retaliatory discharges are expressly prohibited under the [applicable]
statute, and, in addition, a remedy is provided to an employee who

5
 B. RESPONSE TO JUSTICE MARKMAN’S PARTIAL CONCURRENCE
AND PARTIAL DISSENT

Justice Markman would hold that § 1011 of the CIAR does not fall within

the public-policy exception recognized in Suchodolski because he “would not

extend the Suchodolski exceptions beyond the limits of statewide public policy,”

particularly where the local regulation is “more restrictive or burdensome than our

default statewide public policy.” Post at 18. I disagree because I think that, like

claims a violation of the statute. Therefore, unlike the plaintiff in [an
earlier case applying the public-policy exception], the plaintiff in the
present case has a remedy provided by the statute under which he is
suing.

The [earlier] decision does not extend to this case where the
statute involved prohibits retaliatory discharge and provides an
exclusive remedy. [Ohlsen, 111 Mich App at 585-586 (emphasis
added; quotation marks omitted).]

Under the proper reading of Dudewicz, it is clear that it is generally
inapplicable here because the CIAR does not necessarily create an exclusive
remedial scheme that preempts applicable common-law claims, if such claims
exist. As a comparison, the WPA includes a non-retaliation provision and also a
remedial scheme that creates a cause of action for damages or injunctive relief,
grants jurisdiction to the appropriate court, enumerates the burden of proof, and
expressly provides remedies. MCL 15.363 and 15.364. As discussed in Part II of
this opinion, I do not think that it is appropriate for this Court to decide now to
what extent §§ 1010(F) and 1012(F) of the CIAR affect the availability of any
private remedies, so it is unclear at this point whether the CIAR creates a private
remedy or whether that remedy could be deemed exclusive. If those questions
were properly before a court, and that court determined that the CIAR does create
a cause of action with private remedies, and further determined that the boards of
commissioners intended such remedies to be exclusive, then, under Dudewicz, the
public-policy exception would not apply. I would further note that there are
circumstances under which § 1011 of the CIAR would be preempted by the WPA
and in those cases, under Dudewicz, the public-policy exception to the general rule
of at-will employment would not apply.

6
other validly enacted laws in Michigan, an otherwise valid local law can be part of

Suchodolski’s public-policy exception.

To begin with, local laws are part of the state’s law and policies, so it is

difficult to evaluate them distinctly from statewide policy. Justice Markman states

that “while the regulation does reflect the public policy of the four counties that

enacted it, it cannot, in my judgment, be fairly said to reflect the public policy of

the state of Michigan.” Post at 18. But, as a state, Michigan has a policy of

delegating authority to county boards of commissioners to act in matters “that

relate to county affairs,” as long as the local regulations do not contravene

statewide law. MCL 46.11(j); see also Const 1963, art 7, § 34.6 This, in effect,

creates a default scheme of interwoven local and state regulation in areas where

local legislative bodies are authorized to act. So long as local laws are within the

scope of authority delegated to local legislative bodies by the Legislature and

otherwise valid, then local laws are part of the state’s legal and public-policy

framework and reflect the Legislature’s choice to enable overlapping state and

local regulation of that subject area. 7

6
See Part II(A) of this opinion.
7
Justice Markman argues that it would be bad policy to allow local
governments to create non-retaliation provisions because “it is considerably more
burdensome” to employers, “given that all 83 counties could theoretically adopt
varying local public policies.” Post at 18. This outcome is the result of the
Legislature’s decision to permit state and local regulation in this area, however,
and it is up to the Legislature to determine whether the benefits of local regulation
outweigh the costs of a lack of statewide uniformity. Justice Markman states that

7
 The Legislature has even more specifically identified public health as an

area in which state and local regulation is needed. The Legislature expressly

authorized boards of commissioners, in conjunction with local health departments,

to adopt standards “at least as stringent as the standard established by state law” in

order to regulate as “necessary and appropriate” to carry out the statutory duties of

the local health departments to “continually and diligently endeavor to prevent

disease [and] prolong life.” MCL 333.2441(1) and 333.2433(1). As the majority

opinion concludes, the CIAR falls within this authority. Therefore, the Legislature

has specifically contemplated that there may be a patchwork of regulation across

the state in this area.8

In light of the interwoven nature of state and local policies in Michigan, in

my judgment, validly enacted local laws are part of Suchodolski’s public-policy

this position “fails to consider that the Legislature has already done just that by
having indicated that a county is only allowed to enact ordinances that ‘do not
contravene the general laws of this state.’” Post at 18 n 11, quoting MCL 46.10b.
I think that Justice Markman is missing my point. Obviously, he and I have
differing views about whether the CIAR contravenes the general laws of the state,
but I cannot see how his concern that varying local regulations could be
“burdensome” to employers is relevant to that discussion. Regardless of whether
the CIAR contravenes the law of the state for a different reason, it does not do so
merely by virtue of the fact that it is a local regulation, given that the state has an
explicit policy of permitting a patchwork of local regulation in many areas of law.
8
For this reason, I also disagree with Justice Markman’s statement that
because the CIAR is more restrictive than the Michigan Clean Indoor Air Act
(MCIAA), the CIAR does not “reflect the public policy of the state of Michigan.”
Post at 18. To the extent that CIAR is more restrictive than the MCIAA, but not
preempted by the MCIAA, it reflects the state policy to allow interwoven state and
local laws in the area of public health.

8
exception. The purpose of the public-policy exception is to prevent an employer

from discharging an employee on a basis that is contrary to public policy.

Suchodolski, 412 Mich at 695. Suchodolski provides that a public policy can be

established, at a minimum, by an explicit or implicit legislative policy. See id. at

695-696. The CIAR is an explicit legislative policy. Suchodolski did not

distinguish between statewide and local laws or statewide and local legislative

bodies. Instead, Suchodolski repeatedly referred to public policies that are

“legislative statements,” a “legislative expression of policy,” and a “legislative

enactment,” without qualification.9 Id. at 695-696. Suchodolski did recognize

some limits to the public-policy exception, but none applies where, as here, the

policy was enacted by a legislative body and was intended to directly confer rights

on employees.10 I do not think it serves the purposes of the public-policy

exception to create another limitation excluding laws enacted by local legislative

bodies because, in the counties where the CIAR has been enacted, it is part of the

9
Justice Markman agrees that a county board of commissioners “is a
legislative body” and that the CIAR “constitutes the ‘law’ in the four counties,”
but nonetheless concludes that the Suchodolski public policy exception was not
intended to include laws enacted by county boards because a county board is not
“the Legislature” and county laws are not statewide law. Post at 17-18. But
Suchodolski does not provide a basis for this distinction. The few cases and
statutes to which Suchodolski refers do involve laws adopted by the statewide
Legislature, but nothing in the opinion indicates that it finds that to be significant.
10
The limits provided in Suchodolski were that a public policy cannot be
established by the code of ethics of a private association and that a right cannot be
inferred from extensive regulation if the regulation is not “directed at conferring
rights on the employees.” Suchodolski, 412 Mich at 696-697.

9
governing law of the region and an employer is bound to follow it. It would be

contrary to law for an employer to fire an employee on grounds contrary to the

CIAR, and it is therefore consistent with the purposes of the public-policy

exception to include local laws in the public-policy exception. Therefore, I would

not exclude laws enacted by local legislative bodies from the public-policy

exception to the general rule of at-will employment.

II. PRIVATE CAUSE OF ACTION

This Court also asked the parties to address whether the boards of

commissioners had the authority to adopt §§ 1010(F) and 1012(F) of the CIAR,

which create private causes of action.11 McNeil, 482 Mich at 1014-1015. I agree

with the majority opinion’s conclusion that §§ 1010(F) and 1012(F) are valid

because they are within the authority of the boards of commissioners and do not

contravene the general laws of the state.

As Justice Markman stated, the Michigan Constitution provides that county

boards of commissioners have only those legislative, administrative, and other

powers granted to them by law. Const 1963, art 7, § 8. The scope of authority

delegated to boards of commissioners by law, however, is very broad. To begin

with, the constitution provides that the powers granted to counties by the

11
Section 1010(F) of the CIAR states that “[n]otwithstanding any other
provisions of this regulation, a private citizen may bring legal action to enforce
this regulation.” Section 1012(F) states that “[n]otwithstanding any other
provisions of this regulation, a private citizen may bring legal action to enforce
this regulation.”

10
constitution and by law “shall be liberally construed in their favor” and “shall

include those fairly implied and not prohibited by this constitution.” Const 1963,

art 7, § 34. Further, the Legislature very broadly granted boards of commissioners

the power to “pass ordinances that relate to county affairs and do not contravene

the general laws of this state . . . .” MCL 46.11(j).

In light of article 7, §§ 8 and 34, of the Michigan Constitution, and MCL

46.11(j), this Court must address two questions in order to determine whether §§

1010(F) and 1012(F) of the CIAR are within the powers delegated to boards of

commissioners: (1) whether the laws enabling boards of commissioners to enact

regulations adopted by local health departments fairly imply the power to create a

private right of enforcement and, if so, (2) whether doing so otherwise contravenes

the general laws of the state or is prohibited by law.

First, in my judgment, §§ 1010(F) and 1012(F) are within the authority

delegated to boards of commissioners because the power to create a private right

of action is fairly implied by the relevant law delegating authority to boards of

commissioners. The state constitution provides that laws concerning counties

should be liberally construed in their favor and shall be construed to include

“those [powers] fairly implied and not prohibited by this constitution.” Const

1963, art 7, § 34. As noted, the constitution and state statutes give boards of

commissioners broad authority to exercise their legislative power by adopting

ordinances that relate to county affairs. The power to create a private cause of

action is within the legislative power. See Mintz v Jacob, 163 Mich 280, 283; 128

11
NW 211 (1910). 12 Therefore, in my judgment, the power to create a private cause

of action is fairly implied from the broad grant of legislative power given to

boards of commissioners in this area.

Justice Markman argues that we should infer that MCL 46.10b was

intended to limit boards of commissioners’ power in a manner that would prevent

the creation of a private cause of action. As Justice Markman noted, MCL

46.11(j) provides that boards of commissioners may adopt sanctions pursuant to

MCL 46.10b for violations of ordinances adopted under MCL 46.11(j).13 Justice

Markman would hold that this limits the ability of boards of commissioners to

adopt sanctions not included in MCL 46.10b, at least when boards of

commissioners are acting solely under powers authorized in MCL 46.11(j). To the

extent that MCL 46.11(j) can be read to limit the authority of boards of

commissioners, however, I do not think that §§ 1010(F) and 1012(F) of the CIAR

necessarily conflict with this limit given that they do not expressly create any

12
See also, generally, Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706
(1987). I further note that, in Michigan, the ability to create a private cause of
action is also within the authority of the courts. Id.
13
The sanctions permitted by § 10b include imprisonment for a period of
not more than 90 days or a fine of not more than $500. Notably, the Public Health
Code authorizes additional penalties for violation of regulations that, like the
CIAR, are also promulgated under the authority of the Public Health Code. See
MCL 333.2441(2) and 333.2461.

12
additional penalties beyond those applicable for violation of the statute.14 Sections

1010(F) and 1012(F) only state that “a private citizen may bring legal action to

enforce this regulation”; they do not necessarily limit or enhance the extent to

which remedies are available.15 Therefore, as the only question currently before

this Court is whether the boards of commissioners may create a private cause of

action to enforce the CIAR, and not what remedies may be available through the

private cause of action, I do not think that MCL 46.10b limits the power of the

boards of commissioners to adopt §§ 1010(F) and 1012(F).

Second, I do not think that §§ 1010(F) and 1012(F) of the CIAR contravene

the laws of the state. The authority of boards of commissioners to create private

rights of action is limited to the extent that doing so would contravene statewide

law since, under article 7, § 8, of the state constitution, boards of commissioners

only have the powers granted to them by law and, under MCL 46.11(j), they

14
The penalties that may be imposed for violations of the CIAR are
provided in § 1012(B) and (C) of the CIAR.
15
Notably, the question of whether boards of commissioners could create a
private cause of action against a private entity for a private remedy, such as
damages, is not before us. The question whether a court could or should imply a
cause of action for a private remedy from the CIAR is also not before us. I do not
think it is necessary or appropriate for this Court to address these issues today
given that the Court concludes that the CIAR is at least facially valid and this is a
declaratory action. Although Michigan’s court rule permitting declaratory actions,
MCR 2.605, should be broadly construed, there are still limitations to the scope of
a declaratory action. See Allstate Ins Co v Hayes, 442 Mich 56, 65-66; 499 NW2d
743 (1993). I think it is beyond the scope of this declaratory action for the Court
to pontificate regarding the remedies available to future private litigants who are
not parties to this case.

13
cannot adopt ordinances that are contrary to Michigan’s general laws. Justice

Markman argues that the provisions of the CIAR creating private causes of action

are contrary to the general laws of the state because they are inconsistent with

MCL 46.10b and therefore do not fall within Suchodolski’s public-policy

exception to the common-law at-will employment doctrine. As discussed, I think

that §§ 1010(F) and 1012(F) are at least facially valid and thus, at least to the

extent this Court is reviewing these sections today, may fall within Suchodolski’s

public-policy exception and do not necessarily contravene the general laws of the

state.

III. CONCLUSION

For the reasons discussed here, I concur with the majority opinion and

conclude that the CIAR, including §§ 1010(F), 1011, and 1012(F), should be

upheld.

Michael F. Cavanagh
Marilyn Kelly

14
 STATE OF MICHIGAN

SUPREME COURT

KENT A. MCNEIL, FRANKLIN E.
FISHER, and
ROGER GRIFFIN,

Plaintiffs,

and

SCOTT WAY and JEFF LEGATO,

Plaintiffs-Appellants,

v No. 134437

CHARLEVOIX COUNTY and
NORTHWEST MICHIGAN COMMUNITY
HEALTH AGENCY,

Defendants-Appellees.

MARKMAN, J. (concurring in part and dissenting in part).

This case involves an indoor-air regulation proposed by Northwest

Michigan Community Health Agency (NMCHA) (a four-county district health

department) that, pursuant to MCL 333.2441(1), became effective after it was

approved by the corresponding four county boards of commissioners. The first

part of the regulation imposes a broad ban on smoking in public and private

workplaces, including business vehicles occupied by more than one person, and

requires any business (excluding restaurants) that provides a designated smoking

area to do so in a separate enclosed area that is independently ventilated. The
second part of the regulation prohibits an employer from taking an adverse

employment action against a person who asserts the right to a smoke-free

environment, and creates a private right of action by such person against his or her

employer.

After this regulation was approved, plaintiff business owners in the affected

counties filed an action for declaratory relief, arguing that the NMCHA lacked the

authority to enact such a regulation and that the regulation was preempted by the

less restrictive Michigan Clean Indoor Air Act, MCL 333.12601 et seq. Plaintiffs

also argued that the regulation was invalid because it impinged on an employer’s

common-law right to discharge an at-will employee. Plaintiffs’ motion for

summary disposition was denied by the trial court, and they appealed.

The Court of Appeals upheld the regulation in a published opinion. McNeil

v Charlevoix Co, 275 Mich App 686; 741 NW2d 27 (2007). The Court concluded

that the NMCHA possessed the authority to adopt the regulation and that the

regulation was not preempted by the Michigan Clean Indoor Air Act. The Court

also held that the regulation’s restriction on an employer’s general right to

discharge an at-will employee did not violate Michigan’s “at-will” employment

doctrine because it fell within exceptions to that doctrine set forth in Suchodolski v

Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982).

We granted leave to appeal and asked the parties to brief

(1) whether the local health department or the county board of
commissioners, the entity vested with final authorization of the
regulation, MCL 333.2441(1), can create a right or private cause of

2
 action against a private entity that alters Michigan’s at-will
employment doctrine; (2) whether the right or private cause of action
created by Clean Indoor Air Regulation § 1001 [sic: 1011] falls
within the exceptions set forth in Suchodolski v Michigan
Consolidated Gas Co, 412 Mich 692 (1982), to Michigan’s at-will
employment doctrine; and (3) whether the exceptions to Michigan’s
employment at-will doctrine set forth in Suchodolski on the basis of
“public policy” are consistent with this Court’s decision in Terrien v
Zwit, 467 Mich 56 [648 NW2d 602] (2002). [482 Mich 1014
(2008).]

In addition, I separately requested the parties to brief “whether, under relevant

legal and constitutional principles, MCL 333.2441(1) properly delegates authority

to Charlevoix County and the [NMCHA] to promulgate the regulations at issue in

this case.” Id.

Rather than writing an opinion of its own addressing the issues we asked

the parties to brief, the majority has adopted the Court of Appeals opinion

verbatim (except that the preemption analysis has been excluded). As a result, the

majority opinion only peremptorily addresses the first and third issues that we

specifically asked the parties to brief in response to the Court of Appeals opinion.

I concur with the majority’s conclusion that the four county boards of

commissioners acting in conjunction with the NMCHA possessed the authority to

adopt that part of the clean indoor air regulation that restricts smoking and that

such regulation is not preempted by the Michigan Clean Indoor Air Act. I dissent,

however, from the conclusion that the part of the regulation that creates a private

cause of action against employers is valid. Rather, I would hold that a county

board of commissioners cannot create a private cause of action against a private

3
entity that alters Michigan’s at-will employment doctrine. I also dissent from the

conclusion that the part of the regulation that restricts smoking fits within one of

the Suchodolski exceptions to at-will employment. I would not extend the

Suchodolski exceptions to the at-will employment doctrine to the circumstances of

this case.

I. NON-DELEGATION

The parties were asked to brief whether the regulation was enacted pursuant

to a proper delegation of legislative authority. As explained in Taylor v Gate

Pharmaceuticals, 468 Mich 1, 10; 658 NW2d 127 (2003), and Blue Cross & Blue

Shield v Governor, 422 Mich 1, 51-55; 367 NW2d 1 (1985), the Legislature may

not delegate its legislative power to the executive branch. The Legislature may,

however, delegate a task to an executive branch agency if it provides “sufficient

standards.” Taylor, supra at 10 n 9. Such accompanying standards are essentially

viewed as transforming an improper delegation of legislative power into a proper

exercise of executive power. See BCBSM, supra at 51.

The regulation at issue here was adopted pursuant to MCL 333.2441(1),

which provides in relevant part:

A local health department may adopt regulations necessary or
appropriate to implement or carry out the duties or functions vested
by law in the local health department. The regulations shall be
approved or disapproved by the local governing entity. The
regulations shall become effective 45 days after approval by the
local health department’s governing entity or at a time specified by
the local health department’s governing entity. The regulations shall

4
 be at least as stringent as the standard established by state law
applicable to the same or similar subject matter.[1]

Plaintiffs contend that this provision does not include sufficient legislative

standards or guidance for the enactment of regulations and thus amounts to an

improper delegation of legislative authority. I believe that the non-delegation

doctrine is ultimately inapplicable in this case. This is because the provision

specifies that: “[t]he regulations shall be approved or disapproved by the local

governing entity,” and the regulation only becomes effective “after approval” by

the governing entity. That is, a local health department regulation does not

become effective unless it is approved by the local governing entity, which in this

case is the county boards of commissioners. Thus, the provision contemplates a

two-step process: first, the local health department proposes a regulation and,

second, the local governing entity approves the regulation. Only then does the

regulation take effect. When the elected county boards of commissioners

approved this regulation, they were acting pursuant to their own legislative powers

as the governing entities of their respective local jurisdictions. The non-delegation

doctrine does not apply to the proper exercise of legislative power by a legislative

body. See Bendix Safety Restraints Group v City of Troy, 215 Mich App 289; 544

NW2d 481 (1996), adopting the dissent from Marposs Corp v City of Troy, 204

1
This provision is part of the Public Health Code, as is the Michigan Clean
Indoor Air Act. Accordingly, MCL 333.2441(1) authorizes regulations addressing
any matter that comes within the Public Health Code and is not limited to smoking
regulations.

5
Mich App 156; 514 NW2d 202 (1994) (holding that actions taken by a city council

pursuant to a statute do not violate the non-delegation doctrine because a city

council exercises legislative, not executive, power). Thus, when the elected and

accountable boards of commissioners approved the regulation, notwithstanding

that the regulation originated with the unelected and unaccountable health

departments, they were exercising their own legislative powers and were

unaffected by the non-delegation doctrine.

Therefore, I believe that the principal question here is not whether the

regulation was enacted pursuant to an improper delegation of legislative authority,

but whether the county boards of commissioners, acting in conjunction with the

NMCHA, possessed the legislative authority to adopt the regulation.

II. AUTHORITY

Plaintiffs argued below that the NMCHA lacked the authority to adopt the

regulation because its smoking restrictions are stricter than those permitted under

the Michigan Clean Indoor Air Act.2 The trial court and the Court of Appeals

disagreed, and I concur with those courts’ conclusions, although on the basis of a

different rationale.

2
MCL 333.2441(1) specifically states that a local health department
regulation “shall become effective 45 days after approval by the local health
department’s governing entity . . . . ” Given that the regulation would have no
effect unless the county boards of commissioners had approved it, we are
effectively reviewing a county regulation, notwithstanding the fact that the
regulation may have originated in a local health department.

6
 In the course of concluding that the NMCHA and the county boards of

commissioners possessed the authority to enact the regulation, the Court of

Appeals cited among other things: (1) MCL 333.2433(1), which charges that local

health departments “continually and diligently endeavor to prevent disease,

prolong life, and promote the public health through organized programs”; (2)

MCL 333.2435(d), which provides that a local health department may “[a]dopt

regulations to properly safeguard the public health”; and (3) MCL 333.2441(1),

which authorizes the adoption of regulations that “are necessary or appropriate to

implement or carry out the duties or functions vested by law in the local health

department.” After additionally noting that MCL 333.1111(2) provides that the

Public Health Code is to be “liberally construed for the protection of the health,

safety, and welfare of the people of this state,” the Court of Appeals concluded

that these statutes evinced a legislative intent to permit the instant regulation.

I agree with the Court of Appeals that the boards of commissioners, acting

in conjunction with the NMCHA, possessed the authority to adopt the part of the

regulation that restricts smoking. MCL 333.2435(d) specifically provides that a

local health department may adopt “regulations to properly safeguard the public

health . . . .” This provision granted the authority to adopt the part of the clean

indoor air regulation that restricts smoking. MCL 333.2441(1) further provides

that a local health department “may adopt regulations necessary or appropriate to

implement or carry out the duties or functions vested by law in the local health

department,” and protecting the public’s health, including through the

7
implementation of an anti-smoking regulation if that is a local health department’s

determination, would clearly seem to be a responsibility vested in such

departments. And, the regulation is consistent with MCL 333.2433(1), at least to

the extent it is designed to “prevent disease, [and] prolong life.” The only

limitation that the Legislature placed on the promulgation of such a regulation by a

local health department, and the corresponding board of commissioners, is that it

“be at least as stringent as the standard established by state law applicable to the

same or similar subject matter.” MCL 333.2441(1). The regulation of smoking

here is clearly more stringent than the Michigan Clean Indoor Air Act and thus

satisfies this limitation.3

III. PRIVATE CAUSE OF ACTION

Section 1011 of the regulation provides that “no person or employer shall

discharge, refuse to hire or in any manner retaliate against any employee, applicant

for employment, or customer because such employee, applicant, or customer

exercises any right to a smoke-free environment afforded by the regulation.”

3
The parties agree that the regulation restricts smoking in a greater range of
public and private places than the Michigan Clean Indoor Air Act. For example,
the regulation applies to business vehicles occupied by more than one person
whereas the state statute does not. The regulation also imposes greater obligations
on businesses than the state statute. For example, MCL 333.12605(1) provides
that if an owner designates a smoking area, “existing physical barriers and
ventilation systems shall be used to minimize the toxic effect of smoke in both
smoking and adjacent nonsmoking areas.” In contrast, § 1008(6) of the regulation
requires a separate enclosed area that is “independently ventilated” if an owner
designates a smoking area.

8
Section 1010(F) provides that a “private citizen may bring legal action to enforce

this regulation.” And § 1012(F) provides that “an employee or a private citizen

may bring legal action to enforce this regulation.” The lower courts implicitly

concluded that the private cause of action created by this regulation is valid. I

respectfully disagree and would hold that a county board of commissioners cannot

create a private cause of action that is in contravention of Michigan’s “at-will”

employment doctrine.

The majority concludes that the local health department acting in

conjunction with the county board of commissioners can create a right or private

cause of action against a private entity that alters Michigan’s at-will doctrine. The

majority also concludes that the private cause of action created by the regulation is

encompassed by the Suchodolski exceptions to the at-will doctrine.

“Boards of supervisors shall have legislative, administrative and such other

powers and duties as provided by law.” Const 1963, art 7, § 8. Local

governments, including counties, have no inherent authority to enact laws or to

promulgate regulations because they are governments of limited powers acting

pursuant to delegated authority. City of Kalamazoo v Titus, 208 Mich 252, 262;

175 NW 480 (1919), quoting 1 Cooley, Constitutional Limitations (7th ed), pp

163, 264 ff. A county board of commissioners may not exercise a power not

vested in it by statute. Pittsfield School Dist No 9 v Washtenaw Co Bd of Sup, 341

Mich 388, 398; 67 NW2d 165 (1954). A county can exercise only such authority

9
as is expressly or impliedly granted by a superior level of government, and always

subject to such restrictions as are annexed to the grant. Id.

The Legislature granted authority in MCL 46.11(j) to county boards of

commissioners to

pass ordinances that relate to county affairs and do not contravene
the general laws of this state or interfere with the local affairs of a
township, city, or village within the limits of the county, and
pursuant to section 10b provide suitable sanctions for the violation
of those ordinances. [Emphasis added.]

Section 10b, MCL 46.10b, authorizes a county board of commissioners to make a

violation of an ordinance an infraction that subjects an offender to imprisonment

for not more than 90 days or a fine of not more than $500. A county board of

commissioners is also authorized to approve a local health department regulation

that is “at least as stringent as the standard established by state law.” MCL

333.2441(1).

In my judgment, the part of the regulation that allows an employee to bring

a legal action to enforce the regulation is beyond the authority of a county board of

commissioners to enact. This is because it contravenes the law of at-will

employment in this state. The general rule is that “in the absence of a contractual

basis for holding otherwise, either party to an employment contract for an

indefinite term may terminate it at any time for any, or no, reason.” Suchodolski,

supra at 694-695. See also Rood v Gen Dynamics Corp, 444 Mich 107, 116; 507

NW2d 591 (1993).

10
 The instant regulation would limit an employer’s ability to terminate an at-

will employee by creating a new private cause of action by any employee against

his employer for wrongful discharge for asserting a right “afforded by the

regulation.” Thus, the regulation contravenes the general law of this state, the at-

will employment doctrine, and the county boards of commissioners simply do not

possess the authority to act in such disregard.4

4
While MCL 333.2441(1) does authorize a county board of commissioners
to approve a health department regulation that is “at least as strict as state law,” it
does not at the same time countermand the general limitation in MCL 46.11(j) that
a county board may not act in derogation of the general laws of this state in non-
health related areas. The at-will employment doctrine is obviously a fundamental
aspect of the employment law of this state. The Legislature did not confer
authority upon county boards to enact regulations contrary to Michigan’s at-will
employment doctrine. Contrary to Justice Cavanagh’s suggestion, ante at 8 n 7, I
do not contend that the regulation contravenes the general laws of this state merely
because it is a local regulation.

The majority briefly discusses Mack v Detroit, 467 Mich 186, 189; 649
NW2d 47 (2002), and correctly notes that Mack declined to address whether a city
can create a private cause of action against a non-governmental entity. But, Mack
merely states that it “does not address whether a city can create rights, protect
against discrimination, or create a cause of action against a nongovernmental
entity.” Id. at 197 n 12 (emphasis omitted). Such language hardly suggests that a
county, in contravention of the laws of this state, can create a new private cause of
action against an individual or business.

Similarly, the majority states several times that the county boards in
enacting the instant regulation were acting as local “legislative bodies.” I agree
and have so stated. See, e.g., infra at 21 (“a county board . . . is a legislative
body”). But the issue here is only whether the anti-retaliation portion of the
regulation exceeds the authority given to the boards by the Legislature. The
majority devotes its efforts to an undisputed point, when there is a disputed point
that merits analysis.

11
 Moreover, the fact that MCL 46.10b authorizes a county board to enact an

ordinance and to provide for a fine of no more than $500 or imprisonment of no

more than 90 days lends further support to the conclusion that the creation of a

private cause of action for the violation of an ordinance is beyond the powers of a

county board.5 This is because the express mention of one thing in a statute

generally implies the exclusion of similar things. Pittsfield Charter Twp v

Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003). That is, the listing of

allowable sanctions for the violation of a local ordinance implies that non-listed

sanctions are not allowable. See, e.g., Saginaw Co v John Sexton Corp of

Michigan, 232 Mich App 202, 225; 591 NW2d 52 (1998), which invalidated the

penalty provisions of a county ordinance because they exceeded the $500 limit set

forth in MCL 46.10b(1). Thus, even if the regulation did not contravene the

general rule of at-will employment, which I believe it does, I would nonetheless

conclude that a county board may not create a private cause of action against a

private entity simply because they have not been given the authority to do so.6

5
Justice Cavanagh contends in his concurrence that a county board of
commissioner’s power to create a private right of action is “fairly implied by the
relevant law delegating authority to boards of commissioners.” Ante at 11. I
disagree. Counties have no inherent authority, being governments of limited
powers. Pittsfield School Dist No 9, supra at 398. The power to create a private
cause of action is not expressly given, and such power is impliedly denied, to
counties, as explained earlier, given that they are only expressly allowed to enact
ordinances that provide for up to 90 days in a jail and up to a $500 fine.
6
Justice Cavanagh states that §§ 1010(F) and 1012(F) “do not necessarily
contravene the general laws of this state.” Ante at 14. He rejects my argument

12
 IV. SUCHODOLSKI

The majority holds that the smoking restriction of the regulation was

encompassed within the Suchodolski “public policy” exceptions to Michigan’s at-

that the limits on sanctions a board of commissioners may adopt found in MCL
46.10b (a fine of no more than $500 or imprisonment of no more than 90 days)
imply the absence of authority to create a private cause of action. Justice
Cavanagh asserts that these limitations do not conflict with §§ 1010(F) and
1012(F) because these sections “do not expressly create any additional penalties
beyond those applicable for violation” of the regulation and thus do “not
necessarily . . . enhance the extent to which remedies are available.” Ante at 12-
13. I disagree. Sections 1010(F) and 1012(F) authorize a private party to bring a
legal action against a business. Justice Cavanagh is apparently suggesting that a
judge, as a result of such a civil action, would only be able to impose a remedy
consistent with MCL 46.10b(1), although this is nowhere made clear in either
Justice Cavanagh’s statement or in §§ 1010(F) and 1012(F) themselves. Indeed,
given that incarceration of up to 90 days would not even be possible in a civil
lawsuit, it is by no means obvious why these regulations could be said to
“incorporate” the sanctions of MCL 46.10b(1). Moreover, how clear is it that the
trial court would not have available traditional civil remedies under §§ 1010(F)
and 1012(F), such as injunctive or equitable relief? There is simply no basis in
either the opinion of this Court or in the laws themselves to suggest that what
Justice Cavanagh asserts has any basis whatsoever. Perhaps what is most
significant is the reality that a fine under MCL 46.10b(1) would be payable to the
county while a civil judgment issued under §§ 1010(F) and 1012(F) would be
payable to the plaintiff. This incentive for private citizens to sue, in combination
with the fact that such a lawsuit could be brought by any private citizen, or by
many private citizens, could easily be viewed as creating a substantially more
onerous burden on an individual business, and therefore a substantially more
effective remedy for a violation of the statute, than the possibility only of being
charged with an ordinance violation by a local prosecutor who almost certainly
will be burdened by the need to address more serious criminal violations. For this
reason, I believe that the authorization of a private lawsuit, in addition to the relief
provided under MCL 46.10b(1), can fairly be said to expand the available
remedies for a violation of the statute and thereby contravene the general laws of
this state.

13
will employment doctrine. I reject this conclusion and also would not extend these

exceptions to include regulations that do not apply statewide.

In Suchodolski, this Court recognized exceptions to the at-will doctrine

“based on the principle that some grounds for discharging an employee are so

contrary to public policy as to be actionable.” Id. at 695.7 The Court cited as the

circumstances in which such exceptions would apply those involving: (1) “adverse

treatment of employees who act in accordance with a statutory right or duty,” (2)

an employee’s “failure or refusal to violate a law in the course of employment,” or

(3) an “employee’s exercise of a right conferred by a well-established legislative

enactment.” Suchodolski, supra at 695-696. Importantly, in Dudewicz v Norris

Schmid, Inc, 443 Mich 68, 80; 503 NW2d 645 (1993),8 the Court limited

7
We asked the parties to brief whether the Suchodolski exceptions are
consistent with this Court’s decision in Terrien v Zwit, 467 Mich 56; 648 NW2d
602 (2002). Suchodolski used the following terms to identify public policy: “a
statutory right or duty,” “a law,” and a “well-established legislative enactment.”
Suchodolski, supra at 695-696. In Terrien, this Court indicated that in
determining public policy the focus of the judiciary must ultimately be on the
policies that, in fact, have been adopted by the public through our various legal
processes, and that are reflected in our state and federal constitutions, our statutes,
the common law, and administrative rules and regulations. Terrien, supra at 67 n
11. I believe the Suchodolski exceptions are compatible with Terrien because both
cases indicate that “public policy” is to be discerned, not in the personal attitudes
of judges, but in objective and verifiable sources of the law.
8
Dudewicz was overruled in part on other grounds by Brown v Detroit
Mayor, 478 Mich 589; 734 NW2d 514 (2007). The majority fails adequately to
address Dudewicz. First, the majority says the non-retaliation portion of the
regulation does not violate Michigan’s at-will employment doctrine because it fits
within the Suchodolski exceptions, but then it contradictorily argues that Dudewicz
is irrelevant because the WPA does not negate the authority granted by the

14
Legislature. See ante at 15. Under Dudewicz, if the regulation is enforceable
under the WPA then a Suchodolski public policy claim does not exist. While
Justice Cavanagh reads Dudewicz differently than I do, he nonetheless recognizes
that “there are circumstances under which § 1011 of the CIAR would be
preempted by the WPA and in those cases, under Dudewicz, the public-policy
exception to the general rule of at-will employment would not apply.” Ante at 6 n
5.

However, Justice Cavanagh contends that Dudewicz is “generally
inapplicable here because the CIAR does not create an exclusive remedial scheme
that preempts applicable common-law claims, if such claims exist” and that
“Dudewicz limits the first Suchodolski example of a public-policy exception to the
at-will employment rule only where a legislative enactment has not only explicitly
prohibited the discharge of an employee acting in accordance with a statutory right
or duty, but also provided an exclusive remedy for violation of that explicit
prohibition.” Ante at 4-6 n 5. Finally, he indicates that he would overrule the
Court of Appeals opinion in Vagts v Perry Drug Stores, Inc, 204 Mich App 481;
516 NW2d 102 (1994), to the extent it holds otherwise. Ante at 4 n 5. I believe
that Justice Cavanagh has misread Dudewicz. The key part of that case states:

In those cases in which Michigan courts have sustained a
public policy claim, the statutes involved did not specifically
proscribe retaliatory discharge. Where the statutes involved did
proscribe such discharges, however, Michigan courts have
consistently denied a public policy claim. . . . A public policy claim
is sustainable, then, only where there also is not an applicable
statutory prohibition against discharge in retaliation for the conduct
at issue. As a result, because the WPA provides relief to Dudewicz
for reporting his fellow employee’s illegal activity, his public policy
claim is not sustainable. [Id. at 79-80.]

Section 1011 specifically proscribes a retaliatory discharge against an
employee if an employee “exercises any right to a smoke-free environment
afforded by the regulation.” Accordingly, under Dudewicz, the Suchodolski
exceptions do not apply because there is no need for a public policy exception if a
statute, or, as here, a regulation, prohibits discharge in retaliation for the conduct
at issue. While I do not believe those parts of the regulation that create a private
cause of action are valid, Justice Cavanagh and the majority take a different view.
If valid, they provide all the remedy that is needed and no cumulative Suchodolski
exception exists under Dudewicz. And, even though I would hold those parts of
the regulation prohibiting a retaliatory discharge invalid, it is still possible, indeed
likely, that those parts of the regulation promising an employee a smoke-free

15
Suchodolski, stating that a public policy claim is only sustainable when there is no

statutory prohibition against discharge in retaliation for the conduct at issue.9

environment may be enforceable pursuant to the WPA. Finally, Justice
Cavanagh’s citation of Humenny v Genex Corp, 390 F3d 901 (CA 6, 2004), in
support of his claim that Dudewicz only limits the first Suchodolski exception
when the statute [or regulation] provides “an exclusive remedy for violation of that
explicit prohibition,” is inapt. The actual holding of Humenny is that the first issue
that must be addressed in considering a public policy claim is whether the plaintiff
has identified a well-established legislative enactment that addresses the particular
conduct at issue. Id. at 907. This is correct. Humenny also stated that if the cited
statute (or regulation) does not address the particular conduct at issue, there is no
need to reach the question whether the statute “provides a remedy to plaintiffs.”
Id. Again, this is correct. And, I note that Humenny used the phrase “provides a
remedy,” not “provides an exclusive remedy.” There simply is no language in
Humenny that purports to hold that that Dudewicz only limits the first Suchodolski
exception when the statute (or regulation) provides “an exclusive remedy for
violation of that explicit prohibition.” Ante at 4 n 5 (emphasis added). To
reiterate, Dudewicz limits the first Suchodolski exception whenever the cited
statute (or regulation) provides a remedy of its own. Dudewicz, supra at 80. This
is because a public policy remedy is obviously not needed when the cited statute
or regulation provides a remedy of its own. Justice Cavanagh’s citation of Ohlsen
v DST Industries, Inc, 111 Mich App 580, 586; 314 NW2d 699 (1981), does not
support his claim that a cumulative “public policy” claim is allowable where the
applicable statute supplies a non-exclusive remedy. While Ohlsen observed that
the remedy provided by the statute was exclusive, this is a far cry from saying that
it would nonetheless have allowed a cumulative public policy claim if the statute
had provided for a non-exclusive remedy. Finally, Dudewicz noted that remedies
provided by a statute for violation of a right having no common-law counterpart
are generally exclusive, not cumulative. Dudewicz, supra at 78. There can be no
dispute that the common law did not provide a right to a smoke-free work
environment. Thus, the remedies available under §§ 1010(F) and 1012(F) are
properly characterized as exclusive, and even under Justice Cavanagh’s reading of
Dudewicz, a public policy claim is barred.
9
See also Clifford v Cactus Drilling Corp, 419 Mich 356; 353 NW2d 469
(1984), in which this Court held that a public policy exception claim did not exist
where an employer fired an employee for missing work on account of a work-
related injury for which workers’ compensation benefits had been paid.

16
 The majority holds that “‘the regulation’s restriction of the general right to

discharge an employee at will is consistent with the exceptions to that doctrine set

forth in Suchodolski.’” Ante at 11.10 I disagree for two reasons. First, I would not

extend the Suchodolski exceptions to include a local regulation that conflicts with

10
Justice Cavanagh concludes that the regulation fits within the first
Suchodolski exception, for adverse treatment of employees who act “in accordance
with a legally recognized right or duty.” Ante at 3. However, I would point out
that the Court of Appeals in Vagts, supra at 485, stated that Dudewicz “probably
eliminated the first of the three grounds identified in Suchodolski.” As I will
discuss later, to the extent the regulation may be enforceable through the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., this is correct. That
is, if the WPA prohibits discharge in retaliation for the conduct at issue,
Suchodolski does not even apply by the terms of Dudewicz. See also Shuttleworth
v Riverside Osteopathic Hosp, 191 Mich App 25, 27-28; 477 NW2d 453 (1991),
which held that the WPA is the “exclusive remedy” available to an employee
terminated for reporting to any public body a violation of any law or regulation of
this state, a political subdivision, or the United States. Indeed, I note that Justice
Cavanagh agrees that if the regulation is enforceable through the WPA, a “public
policy” claim would not be allowed. Ante at 6 n 5. The majority states that the
WPA does not negate the authority granted by the Legislature in the Public Health
Code. Ante at 22. But, I have not argued that it does. Rather, I have argued that
Public Health Code does not countermand the general limitation of MCL 46.11(j)
on a county board to act in derogation of the general laws of this state in non-
health related areas. See note 4 of this opinion.

The majority also states that the Legislature has authorized local health
departments to enforce Part 126 and rules promulgated under it by any
“appropriate action authorized by law.” Ante at 16, quoting MCL 333.12613(2).
This is true, but we are reviewing a local regulation that allows a private citizen to
file a lawsuit. Given that county boards are only statutorily authorized to enact
ordinances that include a fine of up to $500 and a term in jail of up to 90 days,
MCL 46.10b, and that fact that the express mention of one thing in a statute
generally implies the exclusion of similar things, a statute authorizing a local
health department to enforce a regulation hardly constitutes authority for that
board, acting in conjunction with a county board, to authorize a private citizen,
rather than the health board, to enforce a regulation through a private lawsuit.

17
our statewide public policy. The Suchodolski exceptions refer to a “statutory right

or duty,” a “law,” and “well-established legislative enactment[s].” The instant

regulation at issue is not a statute, and it is not a “well-established legislative

enactment.” Nor is a county board “the Legislature,” although it is a legislative

body. While the regulation constitutes the “law” in the four counties, it does not

constitute the “law” in any other Michigan counties, much less in all the other

Michigan counties. Moreover, the public policy reflected in the regulation is

stricter than the public policy established by our Legislature in the Michigan

Indoor Clean Air Act and that now applies in all other counties. That is, while the

regulation does reflect the public policy of the four counties that enacted it, it

cannot, in my judgment, be fairly said to reflect the public policy of the state of

Michigan. I would not extend the Suchodolski exceptions beyond the limits of

statewide public policy, at the very least where a local regulation is more

restrictive or burdensome than our default statewide public policy. It is one thing

for a private employer to be legally accountable for a wrongful discharge that

violates a statewide public policy as in Suchodolski, but it is considerably more

burdensome to subject employers to wrongful discharge lawsuits for a termination

that arguably only violates a local public policy, given that all 83 counties could

theoretically adopt varying local public policies.11 Justice Cavanagh contends that

11
Justice Cavanagh contends that “it is up to the Legislature to determine
whether the benefits of local regulation outweigh the costs of a lack of statewide
uniformity.” Ante at 7 n 7. However, he fails to consider that the Legislature has

18
under Suchodolski “there is no reason to differentiate a legally recognized right or

duty created by a state statute and a legally recognized right or duty created by

local law.” Ante at 4 n 4. I disagree. Indeed, the use of the modifier “well-

established” in Suchodolski in describing the kind of “legislative enactment” that

would serve as the foundation for its third exception further indicates that

Suchodolski itself was attempting to draw distinctions between types of legislative

enactments, possibly in order to ensure the kind of notice that would be much

more effectively communicated to an employer doing business in multiple

counties throughout the state by a statewide statute than by a local regulation.12

Second, each Suchodolski exception requires a valid “statutory right or

duty,” a “law,” or a “well-established legislative enactment” before it is

applicable. As previously explained, that part of the regulation that purports to

create a private cause of action against private entities is invalid because it exceeds

the authority that MCL 46.11(j) grants a county board. Thus, I do not join the

already done just that by having indicated that a county is only allowed to enact
ordinances that “do not contravene the general laws of this state.” MCL 46.10b.
12
Suchodolski cited two cases as examples of situations in which a plaintiff
had been terminated in violation of a “well established” legislative enactment:
Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), and Hrab v
Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981). Both of these
cases involved workers’ compensation claims. There are few statutes that are as
well established and known to employers as our Workers’ Compensation
Disability Act, MCL 418.401 et seq.

19
majority in its exercise of this Court’s common-law powers to extend the

exceptions of Suchodolski to local regulations.13

Anticipating that this Court might conclude that the private cause of action

provisions of the regulation is invalid, defendants point out that the regulation has

a severability clause14 and argue that even if that part of the regulation that

restricts an employer’s general “at will” authority to discharge an employee is

invalid, the remaining part of the regulation that restricts smoking would still be

enforceable pursuant to the Whistleblowers’ Protection Act (WPA), MCL 15.361

et seq., because the regulation comes within the WPA’s prohibition against

13
Const 1963, art 3, § 7, provides: “The common law and the statute laws
now in force, not repugnant to this constitution, shall remain in force until they
expire by their own limitations, or are changed, amended or repealed.” As noted
in Placek v Sterling Hts, 405 Mich 638, 656-657, 275 NW2d 511 (1979), this
Court may develop the common law through its decisions. Justice Cavanagh
states that he would not “exclude laws enacted by local legislative bodies from the
public-policy exception . . . .” Ante at 10. I believe it is more accurate to describe
the majority as extending Suchodolski to encompass local regulations. Justice
Cavanagh acknowledges that the cases and statutes cited in Suchodolski included
laws adopted by our Legislature, but claims nothing in the opinion indicates the
Court found that to be significant. Ante at 9 n 9. I disagree. Suchodolski only
identified statewide laws, and that Court’s use of the words “well-established
legislative enactment[s]” strongly suggests it was concerned with notice issues.
This discussion, I believe, fairly communicates that local regulations would rarely
be characterized as constituting “well-established legislative enactment[s]” in the
same manner as statewide enactments.

14
Section 1016 of the regulation provides that if any provision, clause,
sentence, or paragraph of the regulation shall be held invalid, such invalidity shall
not affect the other provisions of the regulation and the provisions of the
regulation that are declared invalid shall be severable.

20
discriminating against an employee for reporting a violation of a regulation

promulgated by a political subdivision of the state.

MCL 15.362 provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on behalf of
the employee, reports or is about to report, verbally or in writing, a
violation or a suspected violation of a law or regulation or rule
promulgated pursuant to law of this state, a political subdivision of
this state, or the United States to a public body, unless the employee
knows that the report is false, or because an employee is requested
by a public body to participate in an investigation, hearing, or
inquiry held by that public body, or a court action. [Emphasis
added.]
Defendants argue that the regulation here clearly comes within the “law or

regulation or rule promulgated pursuant to a law of this state, [or] a political

subdivision of this state” language in the WPA. Thus, defendants contend that the

regulation may be enforced by a plaintiff under the WPA. Because this argument

was not considered by the trial court or the Court of Appeals, I would remand to

the Court of Appeals to consider this issue in the first instance. If defendants are

correct that the regulation is enforceable under the WPA, then the Dudewicz

limitation, to wit, that a public policy claim is only sustainable when there is no

applicable statutory prohibition against discharge in retaliation for the conduct at

issue, would apply because the WPA would constitute an applicable statutory

prohibition against discharge in retaliation for the conduct at issue.

21
 Finally, to the extent that plaintiffs’ arguments suggest that the part of the

regulation that restricts smoking more stringently than the Michigan Clean Indoor

Air Act is “unwise” and results in “bad policy,” these concerns must be addressed

to the Legislature or the county boards of commissioners. People v Kirby, 440

Mich 485, 493-494; 487 NW2d 404 (1992). See also Halloran v Bhan, 470 Mich

572, 579; 683 NW2d 129 (2004). Plaintiffs, of course, are also free to pursue

remedies through the electoral and political processes.15

V. CONCLUSION

I agree with the majority that the NMCHA, acting in conjunction with the

local boards of commissioners, possesses the authority to enact that part of the

regulation that restricts smoking “at least as stringently” as the Michigan Clean

Air Act, and this regulation is not preempted by the Michigan Clean Indoor Air

Act. I dissent, however, from the majority’s implicit ruling that the part of the

regulation that creates a private cause of action against private employers is valid.

I would hold instead that MCL 46.11(j) precludes a county board of

commissioners from creating a private cause of action against a private entity that

alters Michigan’s “at-will” employment doctrine. I also dissent from the

conclusion that the part of the regulation that restricts smoking fits within one of

15
Indeed, we are advised that Charlevoix County, though it did not
formally withdraw its ratification of the regulation, recently decided not to enforce
the regulation. I do not know for certain, but I presume, that some or much of the
impetus for this decision was a function of political and other related activities in
that county.

22
the Suchodolski exceptions to “at-will” employment, and I would not extend the

Suchodolski exceptions to include local regulations, at the very least where such

regulations conflict with statewide public policy. Finally, I would remand to the

Court of Appeals to consider in the first instance whether an employee could file a

cause of action under the WPA to enforce his or her rights under the part of the

regulation that restricts smoking.

Stephen J. Markman
Maura D. Corrigan
Robert P. Young, Jr.

23