Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 27, 2001
MICHIGAN COALITION OF STATE
EMPLOYEE UNIONS,
Plaintiff-Appellee,
and
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW) and LYNDA
TAYLOR-LEWIS,
Intervening
Plaintiffs-Appellees,
v No. 115579
MICHIGAN CIVIL SERVICE COMMISSION,
Defendant-Appellant.
______________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
This case presents the question whether a party alleging
a violation of Const 1963, art 11, § 5, the provision of the
Michigan Constitution related to the state civil service
system, must make a particularized showing of irreparable harm
to obtain a preliminary injunction against the alleged
violation. We conclude that such a showing is required as one
condition of obtaining a preliminary injunction. Accordingly,
we vacate the preliminary injunction entered by the circuit
court in this case in its entirety. Notably, we are not
considering the question whether an actual constitutional
violation, which could be remedied by entry of a permanent
injunction, has occurred.
I. Factual and Procedural Background
This case arises from the adoption by defendant Civil
Service Commission on May 8, 1997, of amended Civil Service
Rule 4-6, with a stated effective date of June 1, 1997. While
the details of this rule are not important to our analysis,
the rule generally governs circumstances in which state
agencies subject to civil service regulation are allowed to
contract and pay for personal services from persons who are
not state civil service employees and procedures to be
followed in that regard. The rule contains two provisions
that have been alleged by plaintiffs to be violative of Const
1963, art 11, § 5.1 First, there is a “preauthorization”
1
Section 5 generally governs the responsibilities and
duties of defendant Civil Service Commission. Central to the
present case is the last paragraph of this constitutional
provision, which states:
(continued...)
2
provision that would allow a state agency to authorize
disbursements for any services on a preapproved list without
submitting a specific request for approval to the Civil
Service Commission. Second, the amended rule would add a new
provision for “decentralized approval” of contracts and
payments for personal services rendered by persons other than
state civil service employees in certain situations.
In June 1997, the trial court granted plaintiffs a
preliminary injunction that prohibited the Civil Service
Commission “from implementing, executing, enforcing, or in any
way giving effect” to Civil Service Rule 4-6. Critical to the
issue presently before this Court, the trial court opined in
its oral ruling on the preliminary injunction motion that a
showing of “some particularized injury or damage” was not
necessary to obtain a preliminary injunction against an
alleged violation of Const 1963, art 11, § 5. The trial court
stated that “if a violation of [§ 5] occurs, my reading is
that would be irreparable harm, not just to the Plaintiffs,
but to every citizen of the state.”
1
(...continued)
No payment for personal services shall be made
or authorized until the provisions of this
constitution pertaining to civil service have been
complied with in every particular. Violation of
any of the provisions hereof may be restrained or
observance compelled by injunctive or mandamus
proceedings brought by any citizen of the state.
3
In July 1998, the Court of Appeals granted defendant’s
application for leave to appeal from the issuance of the
preliminary injunction, and eventually affirmed in part and
reversed in part.2 The Court of Appeals opined that the
“decentralized approval” subrule of Civil Service Rule 4-6 was
“facially unconstitutional”3 and that the trial court did not
2
While we recognize that the order of the Court of
Appeals granting leave also stayed further proceedings in the
trial court, over a year passed between the issuance of the
preliminary injunction and that Court of Appeals order. It is
undisputed that, during this entire period from June 1997 to
July 1998, the preliminary injunction remained in effect.
While there may be reasons to explain the delay, it does seem
troubling that the parties were subjected to such a long
period of uncertainty and that a preliminary injunction
against an officially promulgated governmental rule remained
in effect for so long without any decision on the merits. We
are today issuing proposed changes to the Michigan Court Rules
to establish limitations on the period in which a preliminary
injunction may be in effect pending final resolution of a
case. The proposed changes to the court rules are attached as
an appendix to this opinion.
3
We note that the Court of Appeals later in its opinion
seemed to disavow reaching a final or ultimate conclusion on
the constitutional issues:
For purposes of reviewing the preliminary
injunction only, we determine that the trial court
properly concluded that plaintiffs were likely to
prevail on their constitutional challenge to the
“decentralized approval” procedure, although it
incorrectly determined that they will likely
prevail in their constitutional challenge to the
preapproval provision. . . . We stress, however,
that our analysis of these issues is for the
purpose of ruling on the propriety of the
preliminary injunction only. When the matters are
tried, the actual determinations of all plaintiffs’
claims must initially be made by the trier of fact
(continued...)
4
abuse its discretion by finding that plaintiffs were likely to
prevail on that provision. 236 Mich App 96, 102; 600 NW2d 362
(1999). However, the Court of Appeals concluded that the
“preauthorization” provisions of the challenged civil service
rule were not facially unconstitutional and that the trial
court abused its discretion by enjoining those provisions.
236 Mich App 103-105.4
Central to the present issue, the Court of Appeals
rejected defendant’s position that plaintiffs should not have
been granted any preliminary injunction whatsoever because of
their failure to show irreparable harm. The Court of Appeals
stated:
Defendant next argues that no injunction
should have been ordered where plaintiffs failed to
demonstrate that they would suffer irreparable
injury if the injunction was not issued. It argues
that “[a] bare allegation of a constitutional
violation fails to demonstrate irreparable harm.”
We disagree because Const 1963, art 11, § 5
specifically provides that “[v]iolation of any of
the provisions hereof may be restrained or
observance compelled by any citizen of the state.”
As a matter of first impression, we believe that
this language is a constitutional declaration that
a violation of Const 1963, art 11, § 5, in itself,
amounts to irreparable harm supporting injunctive
relief. [236 Mich App 106 (emphasis added).]
3
(...continued)
in the trial court. [236 Mich App 104-105.]
4
Given that plaintiffs have not filed a cross-appeal,
the portion of the Court of Appeals opinion reversing part of
the trial court’s preliminary injunction is not before us for
review.
5
While it may have been more clearly stated, the emphasized
language indicates that “a bare allegation of a constitutional
violation” is sufficient to show irreparable harm. In other
words, the Court of Appeals concluded that a showing of
irreparable harm to a particular party is not required for a
preliminary injunction against an alleged violation of § 5.
We granted defendant’s application for leave to appeal,
“limited to the issue whether a showing of irreparable harm is
required to justify a preliminary injunction against an
alleged violation of section 5.” 463 Mich 925 (2000).
II. Analysis
We review a trial court’s grant of injunctive relief for
an abuse of discretion. See, e.g., Holly Twp v Dep’t of
Natural Resources, 440 Mich 891 (1992) (explaining that
“granting of injunctive relief is within the sound discretion
of the trial court, although the decision must not be
arbitrary and must be based on the facts of the particular
case”).
Ordinarily, the first requirement that a party must meet
to request a trial court to grant any type of relief,
including an injunction, is that the party have “standing” to
request the relief. This means that a party is normally
required to have a sufficiently concrete interest in bringing
a case that it can be expected to provide effective advocacy.
6
Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993).
Said another way, standing has been described as a requirement
that a party ordinarily must have a substantial personal
interest at stake in a case or controversy, as opposed merely
to having a generalized interest in the same manner as any
citizen. House Speaker v Governor, 443 Mich 560, 572; 506
NW2d 190 (1993).5 Recently, we have described it even more
5
Justice Powell, in his concurrence in United States v
Richardson, 418 US 166, 192; 94 S Ct 2940; 41 L Ed 2d 678
(1974), articulated reasons for the requirement of standing,
apart from assuring effective advocacy in a particular case:
[W]e risk a progressive impairment of the
effectiveness of the federal courts if their
limited resources are diverted increasingly from
their historic role to the resolution of public
interest suits brought by litigants who cannot
distinguish themselves from all taxpayers or all
citizens. The irreplaceable value of the power [of
judicial review] articulated by Mr. Chief Justice
Marshall lies in the protection it has afforded the
constitutional rights and liberties of individual
citizens and minority groups against oppressive or
discriminatory government action. It is this role,
not public esteem for the federal courts and has
permitted the peaceful coexistence of the
countermajoritarian implications of judicial review
and the democratic principles upon which our
Federal Government in the final analysis rests.
The considerations outlined above underlie, I
believe, the traditional hostility of the Court to
federal taxpayer or citizen standing where the
plaintiff has nothing at stake other than his
interest as a taxpayer or citizen. It merits
noting how often and how unequivocally the Court
has expressed its antipathy to efforts to convert
the Judiciary into an open forum for the resolution
of political or ideological disputes about the
(continued...)
7
succinctly by indicating that the concept of standing
ordinarily requires that a party have “an interest distinct
from that of the public.” Lee v Macomb Co, 464 Mich ___; ___
NW2d ___ (2001).
It is this requirement that unquestionably is targeted by
§ 5 when it provides that “[v]iolation of any of the
provisions hereof may be restrained or observance compelled by
injunctive or mandamus proceedings brought by any citizen of
the state.” Plaintiffs further contend, however, that more
than this was targeted by § 5's language; that not only did
these words eliminate usual standing requirements, but they
also should be read to mean that the usual requirement that no
preliminary injunction should issue unless the plaintiff could
5
(...continued)
performance of government.
In a similar vein, the United States Supreme Court
observed in Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135
L Ed 2d 606 (1996):
The requirement that an inmate alleging a
violation of Bounds [v Smith, 430 US 817; 97 S Ct
1491; 52 L Ed 2d 72 (1977),] must show actual
injury derives ultimately from the doctrine of
standing, a constitutional principle that prevents
courts of law from undertaking tasks assigned to
the political branches. It is the role of courts
to provide relief to claimants, in individual or
class actions, who have suffered, or will
imminently suffer, actual harm; it is not the role
of courts, but that of the political branches, to
shape the institutions of government in such
fashion as to comply with the laws and the
Constitution.
8
demonstrate a showing of irreparable harm was eliminated.
It is important to be clear that the present appeal
involves only the requirements for preliminary injunctive
relief, an extraordinary remedy that is sometimes granted
before a case is even decided on the merits. It is beyond
reasonable dispute that a trial court has the authority, and,
in appropriate cases, the duty, to enter permanent injunctive
relief against a constitutional violation. See, e.g., Sharp
v Lansing, 464 Mich ___; ___ NW2d ___ (2001) (discussing
availability of injunctive relief against a constitutional
violation). Moreover, the plain language of § 5 provides that
“[v]iolation of any of the provisions here may be restrained
or observance compelled by injunctive or mandamus proceedings
brought by any citizen of the state.” Thus, it is plain that
any Michigan citizen may bring an action in a state trial
court against an alleged violation of § 5 and that, if the
trial court in ruling on the merits of the case at its final
resolution concludes a violation has occurred, that violation
may be remedied by appropriate injunctive or mandamus relief
such as a permanent injunction. The only question we are
considering is whether a plaintiff may also obtain a
preliminary injunction against the alleged constitutional
violation before the case is even decided on the merits
without making a particularized showing of irreparable harm.
9
To evaluate plaintiff’s position regarding the
requirements for a preliminary injunction in the present
context, it is appropriate to begin our analysis by
considering the historical background of Const 1963, art 11,
§ 5.
It is generally accepted that the state’s modern civil
service system had its genesis in the 1936 Report of the Civil
Service Study Commission. Council No 11, AFSCME v Civil
Service Comm, 408 Mich 385, 397; 292 NW2d 442 (1980). That
commission issued “a 94-page ringing condemnation of the
longstanding ‘spoils system’, or ‘patronage system’[6] of state
personnel practices and detailed recommendations for the
6
The report provided the following description of the
prior “spoils system” of state employment:
The spoils system presupposes the existence of
government jobs to be filled with loyal party
workers who can be counted on not to do the state
job better than it can be done by others, but
rather to do the party work or the candidate work
when elections roll around. The state office
buildings are nearly empty during political
conventions, and state money has always been used—
indirectly of course—to enable state employees to
move about the state and keep political fences in
repair.
It is impossible to estimate the loss to the
state of this kind of political activity, but the
most inexperienced know that the amount is
considerable. Not only is the regular work of the
state interrupted or interfered with, but its
services and funds are put at the disposal of
political parties. [Id. at 397 n. 10]
10
enactment of legislation to establish a state civil service
system.” Id. The following year, the Legislature enacted
civil service legislation in 1937 PA 346.
However, the bulk of the civil service reforms enacted in
1937 were gutted during the next regular session of the
Legislature in 1939 when, “obviously dissatisfied with reform
that had been wrought, the newly elected anti-civil service
Legislature adopted a group of bills designed primarily to
destroy the civil service system which had just been
established. . . .” Council No 11, supra at 399.7 Fed up,
the response of the people of the state in 1940 was to place
on the ballot and pass a constitutional amendment,8 described
formally as Const 1908, art 6, § 22. This amendment included
provisions that defined the state employees to be included in
the state civil service, provided for the composition and
7
Among other provisions, the 1939 legislation reduced
the scope of the state classified civil service, reduced the
appropriation for the Civil Service Commission, and provided
increased employment preferences for former state employees.
8
As this Court explained in Council No 11, supra at 400
401:
Finally, in 1940, apparently dissatisfied with
four years of political maneuvering and legislative
advance and retreat on the civil service system
issue, the people of Michigan adopted a
constitutional amendment establishing a
constitutional state civil service system,
superseding the 1939 legislation.
11
duties of the Civil Service Commission, and, in language that
has been continued in our present Michigan Constitution in
§ 5, provided that “[v]iolation of any of the provisions
hereof may be restrained or observance compelled by injunctive
or mandamus proceedings brought by any citizen of the state.”
Const 1908, art 6, § 22.
Given this background, we then must ask what exactly was
it that the people would have understood they were doing in
passing this amendment, because it is this understanding that
is the key to its meaning. In particular, it is this inquiry
that will answer our question with respect to how expansively
the citizens can be understood to have changed the rules, not
only regarding standing, but also the rules regarding the
irreparable injury requirements for securing a preliminary
injunction.
To begin this probe, basic doctrines regarding
constitutional construction are useful to recall. Initially,
of course, if the language of a constitutional provision is
plain, it is that meaning we give to it. As was stated in
Peterman v Dep’t of Natural Resources, 446 Mich 177, 184; 521
NW2d 499 (1994), we examine how constitutional language was
“understood by its ratifiers at the time of its adoption.”
This is straightforward. Yet, what if the constitutional
language had no plain meaning, but rather is a technical legal
12
term or a phrase of art? In answering this, the great
constitutional law scholar and member of this Court in the
nineteenth century, Justice Thomas M. Cooley, said that in
construing technical legal terms used in a constitution “we
must suppose these words to be employed in their technical
sense.” 1 Cooley, Constitutional Limitations (8th ed), p 132).
Paying heed to this rule, this Court applied this principle to
the technical legal phrase “assistance of counsel” in People
v Pickens, 446 Mich 298; 521 NW2d 797 (1994):
[T]he phrase “assistance of counsel,” by
necessity, will not be defined in great detail in
the constitution. Nevertheless, it is one of many
terms that has “acquired a well-understood meaning,
which the people must be supposed to have had in
view in adopting them.” [Id. at 310, quoting 1
Cooley, supra at 132.]
In a similar vein, this Court observed in Walker v Wolverine
Fabricating & Mfg Co, Inc, 425 Mich 586, 596-597; 391 NW2d 296
(1986), that one method of interpreting constitutional
language that is “in no way a part of the common vocabulary”
(which would surely apply to the phrase “injunctive
proceedings”) is to “survey contemporaneous judicial decisions
and legal commentaries for evidence of a consensus within the
legal community regarding the meaning of a term.” This, then,
is the rule: if a constitutional phrase is a technical legal
term or a phrase of art in the law, the phrase will be given
the meaning that those sophisticated in the law understood at
13
the time of enactment unless it is clear from the
constitutional language that some other meaning was intended.9
Let us then examine what was understood in the law in
1940 by the phrase “injunctive proceedings.” The traditional
rules governing “injunctive proceedings” were well established
by 1940 including a requirement of a showing of irreparable
injury to the person or entity seeking the injunction as a
condition for obtaining a preliminary injunction or, as it was
often termed at the time, an interlocutory injunction.
Indeed, a 1905 treatise on injunctions provided that an
interlocutory injunction will not be allowed “where the injury
which will result from the invasion of that right is not
irreparable.” 1 High, Injunctions (4th ed), § 22, p 367.
Discussion of this point in Michigan case law predating 1940
also indicates that a showing of irreparable harm is a
requirement for the issuance of a preliminary injunction. See
9
It is noteworthy that the Michigan Legislature has
expressly adopted the same basic principle in connection with
the interpretation of its work, statutes, namely, that common
words and phrases are to be understood in conformity with
their common meaning, but that technical words and phrases
should be interpreted in accordance with their technical
meaning:
All words and phrases shall be construed and
understood according to the common and approved
usage of the language; but technical words and
phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be
construed and understood according to such peculiar
and appropriate meaning. [MCL 8.3a.]
14
Baltic Mining Co v Houghton Circuit Judge, 177 Mich 632, 643;
144 NW 209 (1913), where this Court indicated that a
preliminary injunction may be granted “if it appears that
there is a real and substantial question between the parties,
to be investigated in a court of equity, and, in order to
prevent irremedial injury to the complainant, before his
claims can be investigated, it is necessary to prohibit any
change in the conditions and relations of the property and of
the parties during the litigation” (citation omitted).
Similarly, in B Siegel Co v Wayne Circuit Judge, 183 Mich 145,
154; 149 NW 1015 (1914), this Court stated that, for a
landlord to obtain a preliminary injunction against structural
changes to a building, it was necessary to show an
“irreparable injury by reason of the damage done to the
freehold through changes in the building impairing its
structural safety.”10
10
Notably, other cases predating the adoption of the 1940
constitutional amendment that do not expressly state that a
showing of irreparable harm is a requirement for obtaining a
preliminary injunction nevertheless include language
indicating that such a requirement was commonly understood to
exist within the legal community. For example, in Grand
Rapids E R Co v Calhoun Circuit Judge, 156 Mich 419, 421-422;
120 NW 1004 (1909), this Court found no abuse of discretion in
a circuit court’s decision to dissolve a preliminary
injunction where the circuit court concluded that the action
sought to be enjoined would not cause irreparable injury to
the moving party. Similarly, Heliker v Heliker, 184 Mich 657,
659; 151 NW 757 (1915), noted that a preliminary injunction
against cutting trees on a parcel of land was issued after the
(continued...)
15
Thus, it is clear that in 1940 it was beyond dispute in
the legal community that a party needed to make a
particularized showing of concrete irreparable harm or injury
in order to obtain a preliminary injunction. Moreover, there
is no basis to conclude that the requirements to secure a
preliminary injunction changed in any pertinent way between
the adoption of the amendment in 1940 and the adoption of its
successor, § 5, in the present Michigan Constitution in 1963,
or even up to this day. The requirement of a showing of
irreparable harm remains as it did a century ago. In our
latest statement on this issue in Michigan State Employees
Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365
NW2d 93 (1984), this Court reiterated the requirement of a
showing of irreparable harm as a prerequisite for a
preliminary injunction, explaining that it was a requirement
for the issuance of a preliminary injunction to demonstrate
“that the applicant will suffer irreparable injury if a
preliminary injunction is not granted.”11
10
(...continued)
filing of a complaint alleging “loss and irreparable injury to
the inheritance and great damage to the complainant.”
11
We note that Michigan State Employees Ass’n also arose
in the civil service context. In the course of reversing a
preliminary injunction granted in favor of a discharged civil
service employee, this Court noted that its “holding addresses
the required showing of irreparable injury necessary to
support the issuance of a preliminary injunction.” Id. at
(continued...)
16
Accordingly, we conclude that a particularized showing of
irreparable harm was, and still is, as our law is understood,
an indispensable requirement to obtain a preliminary
injunction. Moreover, the people, in causing the Michigan
Constitution to be amended in 1940, evidenced no desire, as
they had done with standing, to modify the traditional rules
that had pertained with regard to this requirement for a
preliminary injunction. Therefore, when considering the
request for a preliminary injunction in this matter, the trial
court and the Court of Appeals were in error in granting any
preliminary injunction without a showing of concrete
irreparable harm to the interests of a party before the Court.
We underscore, in accordance with the limited grant of
leave in this case, that we are concerned only with the
requirements for a preliminary injunction. This opinion
expresses no view about the proper resolution of the merits of
this case, i.e., whether Civil Service Rule 4-6 is violative
11
(...continued)
135. This Court stated that such a preliminary injunction
“should issue only in extraordinary circumstances.” Id. at
166.
The Court also outlined that, in addition to the required
demonstration of irreparable harm to the moving party in the
absence of a preliminary injunction, a trial court should
consider (1) harm to the public interest if such an injunction
is issued; (2) whether harm to the applicant absent such an
injunction outweighs the harm it would cause to the adverse
party, and (3) the strength of the moving party’s showing that
it is likely to prevail on the merits. Id. at 157-158.
17
in whole or in part of § 5.
III. Response to Dissent
Contrary to the possible implication of the dissent, this
opinion does not preclude the ability to obtain any injunctive
relief when the Civil Service Commission acts in violation of
§ 5. Nothing of the sort has happened. This appeal does not
involve what relief is available when, after a hearing on the
merits, the court is confronted with whether to issue a
permanent injunction. Rather, we are concerned with the
preliminary injunction, an injunction that is sought before
the parties have had their day in court. Then, in that
situation and that situation alone, the petitioner must
demonstrate irreparable injury. This is utterly
unexceptional. It has, indeed, been our law, as this opinion
has taken pains to point out, unvaryingly since Michigan
became a state. It is, we believe, the law in every other
state of the union as well.
Thus, the dissent is incorrect in describing our approach
as being “to completely destroy the power of ‘any citizen’ to
compel constitutional compliance.” Post, p 10. Nothing in
this opinion restricts, in any way, the authority of a trial
court to grant appropriate relief, including entry of a
permanent injunction, if a Michigan citizen establishes an
actual violation of § 5 when a case is decided on the merits.
18
Rather, pursuant to the plain language of § 5 stating that
“[v]iolation of any of the provisions hereof may be restrained
or observance compelled by injunctive or mandamus proceedings
brought by any citizen of the state, ”any Michigan citizen may
bring suit to challenge an alleged violation of this provision
of the Michigan Constitution without meeting ordinary standing
requirements. Further, if the trial court decides the merits
of the case in favor of the plaintiff, the trial court may
then enter a permanent injunction or other appropriate relief
against the violation–even in the absence of irreparable harm
to any person. This is because § 5 expressly provides the
authority to restrain a violation of its provisions. Thus, if
a trial court, in resolving the merits of a case, determines
that a violation of § 5 has actually occurred, the trial court
necessarily has authority to grant injunctive or mandamus
relief against the violation. However, by definition, a
decision on a preliminary injunction is made before there is
even a determination of the merits of a case. This opinion
merely reaffirms that a plaintiff alleging a violation of § 5
may not obtain preliminary injunctive relief, which in the
ordinary course of things would be addressed before a
constitutional violation has been established, without meeting
the traditional requirements for this extraordinary relief.
Further, we are not “implying that irreparable harm must
19
have already occurred in order for [preliminary] injunctive
relief to be available.” Post, p 6. Rather, as stated
earlier, we recognize that a preliminary injunction may be
appropriately entered if it is demonstrated that “the
applicant will suffer irreparable injury” absent the
preliminary injunction (and the other appropriate
prerequisites to the grant of a preliminary injunction are
met), p 17, quoting Michigan State Employees Ass’n, supra. In
other words, a trial court may properly grant a preliminary
injunction if a party shows that it will otherwise imminently
suffer irreparable harm and the other proper grounds for such
relief are satisfied.
Finally, unlike the dissent, we see nothing
“inconsistent,” post, p 13, n 7, in recognizing that any
Michigan citizen has “standing” to challenge an alleged
violation of § 5, but that a party doing so must make a
particularized showing of irreparable harm in order to obtain
a preliminary injunction against the alleged violation. As we
have discussed, the plain language of § 5 necessarily requires
the courts to allow any Michigan citizen to challenge an
alleged violation of this constitutional provision and to
obtain relief if an actual violation is found when the case is
resolved on the merits. However, a preliminary injunction
before there is a decision on the merits—and, thus, before it
20
can be said that a violation of § 5 has been established in
court—is an extraordinary type of relief available only with
a showing of irreparable harm. It is no more “inconsistent”
to draw this distinction than it is to recognize that there
are multitude of suits between private litigants in which both
sides obviously have standing to litigate the case, but
neither has any basis to obtain a preliminary injunction
against the other.
IV. Conclusion
We conclude that the lower courts erred in viewing a
particularized showing of irreparable harm as unnecessary to
obtaining a preliminary injunction against an alleged
violation of Const 1963, art 11, § 5. In other words, we read
nothing in § 5 that would suggest that, in the civil service
realm, the actions of the government are any more susceptible
to preliminary injunctive relief than are the actions of any
other private or public entity. Pending the resolution of a
suit claiming a violation of § 5, a party to such a suit may
obtain a preliminary injunction only after satisfying all the
requirements traditionally required for this extraordinary
relief. Accordingly, the circuit court abused its discretion
by granting a preliminary injunction in the present case in
the absence of such a showing. Thus, we reverse the Court of
Appeals in part, vacate the preliminary injunction entered by
21
the circuit court in this case in its entirety, and remand
this case to the circuit court for any appropriate proceedings
consistent with this opinion.
CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with
TAYLOR, J.
22
01-XX
Proposed Amendments of
Rules 3.310, 7.208, and 7.213
of the Michigan Court Rules
___________________________
On order of the Court, this is to advise that the
Court is considering amendments of Rules 3.310, 7.208, and
7.213 of the Michigan Court Rules. Before determining whether
the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford any interested person
the opportunity to comment on the form or the merits of the
proposal. We welcome the views of all who wish to address the
proposal or who wish to suggest alternatives. Before adoption
or rejection, this proposal will be considered at a public
hearing by the Court. The Clerk of the Court will publish a
schedule of future public hearings.
Publication of this proposal does not mean that the
Court will issue an order on the subject, nor does it imply
probable adoption of the proposal in its present form.
[The present language would be amended as indicated below.]
Rule 3.310 Injunctions
(A) Preliminary Injunctions.
(1) - (4) [Unchanged.]
(5) If a preliminary injunction is granted, the
court shall promptly schedule a pretrial
conference. The trial of the action on the
merits must be held within 6 months after the
injunction is granted, unless good cause is
shown or the parties stipulate to a longer
period. The court shall issue its decision on
the merits within 56 days after the trial is
completed.
(B) - (I) [Unchanged.]
Rule 7.208 Authority of Court or Tribunal Appealed From
(A) Limitations. After a claim of appeal is filed or leave
to appeal is granted, the trial court or tribunal may not
set aside or amend the judgment or order appealed from
23
except
(1) by order of the Court of Appeals,
(2) by stipulation of the parties,
(3) after a decision on the merits in an action in
which a preliminary injunction was granted, or
(4) as otherwise provided by law.
In a criminal case, the filing of the claim of appeal
does not preclude the trial court from granting a timely
motion under subrule (B).
(B) - (I) [Unchanged.]
Rule 7.213 Calendar Cases
(A) - (B) [Unchanged.]
(C) Priority on Calendar. The priority of cases on the
session calendar is in accordance with the dates of the
clerk’s notice to the parties, except that precedence shall be
given to interlocutory criminal appeals, child custody cases,
and interlocutory appeals from the grant of a preliminary
injunction.
(D) - (E) [Unchanged.]
Staff Comment: The proposed amendments of Rules
3.310, 7.208, and 7.213 were announced by the Supreme Court in
Michigan Coalition of State Employee Unions v Michigan Civil
Service Commission, Docket No. 115579 (decided July , 2001).
The amendments would require trial courts to expeditiously
decide actions in which preliminary injunctions have been
granted, and would allow them to proceed even if the Court of
Appeals has granted interlocutory leave to appeal. Similarly,
if the Court of Appeals granted leave to review entry of a
preliminary injunction on an interlocutory basis, that court
would be required to give priority to resolution of the
appeal.
The staff comment is published only for the benefit of the
bench and bar and is not an authoritative construction by the
Court.
24
_____________________________________________
Publication of this proposal does not
mean that the Court will issue an order
on the subject, nor does it imply
probable adoption in its present form.
Timely comments will be substantively
considered, and your assistance is
appreciated by the Court.
_____________________________________________
A copy of this order will be given to the secretary
of the State Bar and to the State Court Administrator so that
they can make the notifications specified in MCR 1.201.
Comments on this proposal may be submitted in writing or
electronically to the Supreme Court Clerk by November 1, 2001.
P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@jud.state.mi.us. When submitting a comment, please
refer to File No. 01-XX.
25
S T A T E O F M I C H I G A N
SUPREME COURT
MICHIGAN COALITION OF STATE
EMPLOYEE UNIONS,
Plaintiff-Appellee,
and
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW) and LYNDA
TAYLOR-LEWIS,
Intervening
Plaintiffs-Appellees,
v No. 115579
MICHIGAN CIVIL SERVICE
COMMISSION,
Defendant-Appellant.
____________________________________
CAVANAGH, J. (dissenting).
The majority provides interesting commentary on the civil
service system. Yet, it skims only the surface of the issues
necessary to the resolution of this case, and while seeming to
address a narrow issue, leaves behind a rule that could limit
the power that the people have reserved in themselves.1 In my
view, Const 1963, art 11, § 5 clearly preserves the power of
the people to restrain the actions of the Civil Service
Commission whenever the provisions of the constitution are not
complied with. I agree with the courts below that a showing
of a constitutional violation may constitute irreparable harm
to every citizen of this state, and that each citizen may not
only bring injunctive or mandamus proceedings, but also has a
meaningful opportunity to obtain relief. Further, I would
hold that Const 1963, art 11, § 5 does not limit the class of
citizens who may obtain relief in the form of a preliminary
injunction. Therefore, I dissent.
I
The majority spends pages upon pages discussing the
accepted maxim of constitutional construction that the
constitution should be given the meaning intended by the
people. Additional pages are dedicated to establishing that
the existence of irreparable harm is traditionally a
precondition to the issuance of a preliminary injunction.
1
Despite its attempts to leave the issue narrow,
however, the majority expands its opinion to include
discussion of Michigan’s Rules of Court. Because of how the
majority decides this case, the opinion is not affected by the
proposed court rule incorporated into the majority’s appendix.
My comments about the substantive propriety of the court rule
will be reserved for discussion as part of the standard
procedure for implementing court rule changes.
2
Yet, the majority’s observations are somewhat puzzling since
neither the trial court nor the Court of Appeals held that
Const 1963, art 11, § 5 eliminates the requirement that
irreparable harm must be shown. To the contrary, the courts
below held that a constitutional violation may cause
irreparable harm.
The majority errs at the outset by determining that the
rule that irreparable harm must be shown somehow forms a basis
for vacating the preliminary injunction issued by the trial
court. Yet, though I agree with the majority that
irreparable harm must be shown, I believe that the majority is
simply wrong in basing reversal on the theory that “when
considering the request for a preliminary injunction in this
matter, the trial court and the Court of Appeals were in error
in granting any preliminary injunction without a showing of
concrete irreparable harm to the interests of the parties
before the Court.” Slip op at 18. Rather, both courts
explained why irreparable harm to the parties would exist in
this case and clearly found there to be a clear likelihood of
success on the claim of a constitutional violation. The trial
court in fact discussed the issue at great length and the
trial court opinion reveals that the court understood the
requirements of a preliminary injunction. The following
excerpt unequivocally shows that the trial court validly
3
exercised its discretion and found concrete irreparable harm
to the interests of the parties before the Court:
Irreparable harm, there has been a zealous
plea by the Commission, Counsel for the Commission
that these Plaintiffs have to show, as I hear the
argument, some particularized harm. Given that
none of their positions are immediately scheduled
to be eliminated, they cannot make that showing.
* * *
I understand the Plaintiffs claim, assert
their positions are affected, but as I view this
case, they stand before this Court as citizens of
this state, who challenge the conduct of the
Commission in light of its constitutional
obligations. And, unless I read this
constitutional language as having no meaning
whatsoever, a part of Article 11, Section 5 of the
1963 Constitution says very clearly violation of
any of the provisions hereof may be restrained or
observance compelled by injunction, injunctive or
mandamus proceedings brought by any citizen of the
state. No qualification there.
And, that clearly means does somebody have to
show some particularized injury or damage as a
result. I don’t think so. Because, every citizen
of this state is entitled [to] have a civil service
system that works, that does the state’s business
and does it fairly, does it honestly, does it
economically, and we’re all affected. So to that
extent, to the extent that any contract is entered
to [sic] in violation of this constitutional
provision, that any position is abolished in
violation of the constitutional provision, every
citizen of this state is damaged. And, I believe
that I am obligated here to effectuate that
language certainly, that language takes precedence
over . . . some of these other holdings.[2]
I mean, we need to keep in mind . . . this
came about because the Legislature did not act
2
Citations omitted.
4
sufficiently in the view of Michigan citizens to
protect their interest in having a strong system of
merit in selecting public employees, but in effect
allowed, and apparently had been present for many,
many years, a spoils system. And so, they weren’t
just satisfied to make changes and create [Const
1963, art 11, § 5], they said not only are we
making changes, we are going to empower any citizen
of this state by an action, essentially, at any
time to assure that this provision is complied
with.
So in effect, if a violation of this occurs,
my reading is that would be irreparable harm, not
just to the Plaintiffs, but to every citizen of
this state and the Plaintiffs or someone else, the
citizens of Bay City or the factory workers of
General Motors Corporation can file an action to
bar this unlawful, alleged unlawful activity. And
in this case, I’m satisfied that there is a
sufficient showing the citizens would be harmed,
because it appears that at least one or more of the
provisions of Article 11, Section 5 are not
complied with under the rules as proposed.
[Emphasis added.]
This language demonstrates that the trial court’s holding was
not that plaintiffs are relieved from showing irreparable
harm, but that a constitutional violation irreparably harms
every individual in this state. In other words, the harm
resulting in an art 11, § 5 context does not flow from an
action taken by the Civil Service Commission against a
specific individual as would be the case under the
commission’s view. Instead, the harm flows from the violation
itself, and flows to each individual citizen.
The majority holds that any citizen may obtain permanent
injunctive relief after a constitutional violation occurs, but
5
that a citizen may not obtain a preliminary injunction to
enjoin the probable harm that could result from a
constitutional violation. The majority correctly recognizes
that the derogation of a constitutional right has been held to
be irreparable harm for the purposes of determining injunctive
relief. Slip op at 9-10. Thus, the type of injury wrought by
a constitutional violation can clearly be irreparable. The
majority’s error lies in implying that irreparable harm must
have already occurred in order for injunctive relief to be
available. The fundamental flaw in this logic is that the
point of a preliminary injunction is to preserve the status
quo ante and prevent the harm from occurring until a decision
may be rendered on the merits. In other words, preliminary
injunctive relief is designed to meet the threat of a future
wrong. 42 Am Jur 2d, Injunctions, § 2, § 10. In any event,
an applicant seeking preliminary injunctive relief need only
establish a likelihood of success on the merits. See MSEA v
Dep’t of Mental Health, 421 Mich 152; 365 NW2d 93 (1984).
Further, by precluding preliminary relief in cases where
a citizen alleges that irreparable harm will result if a
constitutional violation is allowed to occur, the majority
essentially rewrites the constitution as providing that
“violation of any of the provisions hereof may be restrained
or compelled by any citizen seeking permanent injunctive or
6
mandamus relief.” However, the constitution is not so
limited. It allows any citizen to compel observance or
restrain violations through injunctive or mandamus
proceedings. As the majority aptly points out, Michigan has
long recognized the availability of preliminary injunctions.
Those injunctions are necessarily issued through injunctive
proceedings.
Like the trial court, the Court of Appeals recognized
that irreparable harm to every citizen occurs simultaneously
with a constitutional violation. It wrote:
Defendant next argues that no injunction
should have been ordered where plaintiffs failed to
demonstrate that they would suffer irreparable
injury if the injunction was not issued. It argues
that “a bare allegation of constitutional violation
fails to demonstrate irreparable harm.” We
disagree because Const 1963, art 11, § 5
specifically provides that “violation of any of the
provisions hereof may be restrained or observance
compelled by injunctive or mandamus proceedings
brought by any citizen of the state.” As a matter
of first impression, we believe that this language
is a constitutional declaration that a violation of
Const 1963, art 11 § 5, in itself, amounts to
irreparable harm supporting injunctive relief.[3]
[236 Mich App 96, 106; 600 NW2d 362 (1999).]
In light of these statements by the courts below, I
believe it clear that the problem the majority finds is not
with the failure to address the existence of irreparable harm,
3
The Court of Appeals did say that an “additional”
showing of irreparable harm was unnecessary, but it first
found that the threatened harm would be irreparable because of
the alleged constitutional violation.
7
but with the idea that the irreparable harm caused by a
violation of Const 1963, art 11, § 5 may be remedied by
preliminary injunctive proceedings brought by any citizen
rather than only by citizens affected in some way peculiar
from the rest of the populace. I agree with the courts below
and believe that the majority’s approach is contrary to the
language and purpose of the constitution.
II
The majority acknowledges that the lower courts stated
that a constitutional violation amounts to irreparable harm,
but nonetheless concludes that neither court required a
finding of the requisite irreparable harm. Specifically, the
majority writes:
Critical to the issue presently before this
Court, the trial court opined in its oral ruling on
the preliminary injunction motion that a showing of
“some particularized injury or damage” was not
necessary to obtain a preliminary injunction
against an alleged violation of Const 1963, art 11,
§ 5. The trial court stated that “if a violation
of [§ 5] occurs, my reading is that would be
irreparable harm, not just to the Plaintiffs, but
to every citizen of the state.” Slip op at 3-4.
Similarly, with respect to the Court of Appeals opinion, the
majority writes:
While it may have been more clearly stated,
the emphasized language indicates that “a bare
allegation of a constitutional violation” is
sufficient to show irreparable harm. In other
words, the Court of Appeals concluded that a
showing of irreparable harm to a particular party
is not required for a preliminary injunction
8
against an alleged violation of § 5. [Slip op at 6,
emphasis added.]
While I agree with the majority that the courts below said
that a constitutional violation is equivalent to irreparable
harm, I do not agree with the conclusion that the courts “in
other words” implied that harm to an individual party need not
be shown. Rather, in my view, the courts below “in other
words” said that every individual citizen is irreparably
harmed by a constitutional violation. I am at a loss to
understand how the Court’s statement that these plaintiffs
would suffer irreparable harm can simultaneously be a
conclusion that the plaintiffs need not show that they
themselves would suffer irreparable harm. The majority makes
the mistake of reading the trial court opinion as providing
that any citizen can bring suit by saying, “I can bring suit
for all of us, because society as a whole is harmed by a
violation of Const 1963, art 11, § 5.” In my view, the trial
court decision actually provides that a violation of Const
1963, art 11, § 5 injures each citizen individually. As such,
every citizen may institute injunctive or mandamus
proceedings. Thus, under the trial court opinion, any
plaintiff bringing suit would be constitutionally authorized
to allege “I will be hurt individually because of the
9
violation.”4
Interestingly, the majority concludes:
[S]tanding has been described as a requirement
that a party ordinarily must have a substantial
personal interest . . . as opposed merely to having
a generalized interest in the same manner as any
citizen. . . . It is this requirement that
unquestionably is targeted by § 5 when it provides
that “violation of any of the provisions hereof may
be restrained or observance compelled by injunctive
or mandamus proceedings brought by any citizen of
this state.” Slip at 7-9.
Despite the fact that the aforementioned constitutional
language mentions neither standing nor the requirements for a
preliminary injunction, the majority reaches the conclusion
that particularized injury is suspended for the purposes of
coming before the Court, but once there, particularity is
reintroduced in association with the requirement that
irreparable harm be shown. In other words, under the
majority’s approach, anyone can come before the court to seek
an injunction, but if the person cannot show the type of
particularized harm that would normally be required for
standing purposes, then they cannot obtain relief in the form
of a preliminary injunction. The effect of such an approach
is to completely destroy the power of “any citizen” to compel
constitutional compliance.
4
In any event, this issue relates to the question of
standing, as will be further explained.
10
The constitutional language does not provide only that
injunctive proceedings may be brought by any citizen. It
additionally says that a violation may be restrained or
observance compelled by any citizen. Yet, under the majority
view, only a citizen whose job will be adversely affected by
a decision of the commission may restrain the violation by
preliminary injunctive proceedings. Thus, in the context of
preliminary proceedings, the protection afforded to “any
citizen” of this state effectively becomes a protection
afforded to a limited class of citizens. I cannot support an
approach that allows all citizens with valid legal claims
regarding a constitutional violation to institute legal
proceedings, but which nullifies the purpose of those
proceedings by making preliminary injunctive relief per se
unavailable to a large percentage of those citizens despite
the contrary purpose and language of our constitution.
I believe that the problem created by the majority
approach stems in part from the fact that the majority injects
particularity into its analysis of irreparable harm, rather
than limiting the question of particularity to the standing
context. The generally accepted analysis used in preliminary
injunction cases considers four factors:
harm to the public interest if an injunction
issues, whether the harm to the applicant in the
absence of a stay outweighs the harm to the
opposing party if a stay is granted; the strength
11
of the applicant’s demonstration that the applicant
is likely to reveal on the merits; and
demonstration that the applicant will suffer
irreparable injury if a preliminary injunction is
not granted. [MSEA v Dep’t of Mental Health, 421
Mich 152; 365 NW2d 93 (1984).]
The focus of the four-factor analysis is on the type of injury
rendered by the issuance or nonissuance of an injunction. In
the context of issuing injunctions, irreparable injury has
special meaning under the law. The injury is traditionally
defined in terms of whether the injury can be repaired by
means other than through the issuance of an injunction.5
Although it is true that the MSEA test and the tests
applied in various cases cited by the majority refer to
injuries to the “plaintiff” or to the “complainant,” the
references are fairly unremarkable since it is always the
complainant who seeks redress of an injury. Also, in an
injunction case involving subject matter not governed by a
constitutional provision such as Const 1963, art 11, § 5, the
complainant will have had to prove particularity in order to
establish standing. What is remarkable, however, is the fact
that the majority offers no authority for the proposition that
a plaintiff must show that the harm he suffers is somehow
5
For example, Black’s law dictionary provides the
following explanation, “‘Irreparable injury’ justifying an
injunction is that which cannot be adequately compensated in
damages or for which damages cannot be compensable in money.”
Black’s Law Dictionary (6th ed), p 786.
12
irreparable in a different way than it is irreparable to any
other plaintiff. The reason, in my view, is that the
“requirement that a party ordinarily must have a substantial
personal interest at stake in a case or controversy as opposed
merely to have a generalized interest in the same manner as
any citizen,”6 pertains to standing and not to the question
whether a party will suffer irreparable harm.7 Here, Const
1963, art 11, § 5 specifically confers standing on all
citizens.
For all these reasons, I believe that the majority
opinion is erroneous and that its reasoning fails to support
its conclusion. I prefer the reasoning and holding of the
trial court. I would, therefore, affirm the recognition by
the courts below that irreparable harm may be established by
6
Slip op at 6-7.
7
As was recently recognized by a majority of this Court
in Lee v Macomb Co, 464 Mich ___; ___ NW2d ___ (2001), the
type of particularized harm referenced by the majority is
clearly a requirement of the standing doctrine. As noted
previously, no similar particularity requirement is required
as part of the irreparable harm inquiry. However, even if I
agreed with the majority that particularity is required in the
context of irreparable harm, as explained at length in this
opinion, I believe it is inconsistent to conclude that the
people of the state of Michigan intended to suspend the
requirement of particularized harm for the purpose of allowing
citizens to enter the courtroom door, but nonetheless those
citizens must afterward show the very type of particularized,
concrete harm suspended for standing purposes in order to
receive a preliminary injunction.
13
proof of a violation of Const 1963, art 11, § 5, and hold that
the trial court did not abuse its discretion.
WEAVER and KELLY , JJ., concurred with CAVANAGH , J.
14