Lee v. MacOmb County Board of Commissioners

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2001

MICHAEL LEE, BRYAN DUNCIL, MARY

DUNCIL on behalf of herself and

JOSEPH DUNCIL, BRYAN DUNCIL, KENNETH

DUNCIL, and JON DUNCIL, as their

Next Friend, and the class of all

others similarly situated,

Plaintiff-Appellees,

v No. 114700

THE MACOMB COUNTY BOARD OF

COMMISSIONERS, and the COUNTY OF

MACOMB,

Defendant-Appellants.

____________________________________

DENNIS D. WALKER, on behalf of

himself and DAWNELL J. WALKER and

MELANIE WALKER, their Next Friend,

and DWAYNE STEAGALL, ERNEST GROCE,

JERRY GRAY, PAUL ECKLEY, DUANE GORE,

KENNETH JONES, MORRIS BARTOLOTTA, and

the class of all others similarly

situated,

Plaintiffs-Appellees,

v
No. 115259

THE WAYNE COUNTY BOARD OF

COMMISSIONERS and THE COUNTY

OF WAYNE,

Defendants-Appellants.

_____________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

At issue in these two cases coming to us from Macomb and

Wayne counties is whether these plaintiffs have standing to

pursue actions to compel their respective county board of

commissioners to levy a tax to establish a veterans’ relief

fund in accordance with the soldiers’ relief fund act, MCL

35.21 et seq. It is uncontested that none of the plaintiffs

actually had sought relief under the act. Because of this,

the counties asserted that these litigants had suffered no

injury and, accordingly, that plaintiffs (1) were without

standing to sue and (2) had failed to exhaust statutory

remedies. In Lee, the Macomb County case, the trial court

granted summary disposition for the county on those grounds.

In Walker, the Wayne County case, the trial court denied the

county’s motion for summary disposition, concluding that

plaintiffs had standing and were not required to exhaust

statutory remedies because they alleged a complete failure to

comply with the act. The Court of Appeals consolidated the

appeals and largely reversed in Lee and affirmed in Walker.

235 Mich App 323; 597 NW2d 545 (1999). It concluded that

2

plaintiffs had standing to sue to compel implementation of the

act and that mandamus was a proper remedy. We reverse.

Statutory Analysis

In these actions, plaintiffs seek to compel the

legislative branch of the county government, the board of

commissioners, to levy a tax to establish a veterans’ relief

fund pursuant to the soldiers’ relief fund act. MCL 35.21

provides in pertinent part:1

The county board of commissioners of each

county shall annually levy, a tax not exceeding

1/10 of a mill on each dollar, to be levied and

collected as provided by law, upon the taxable

property of each township and city, for their

respective counties, for the purpose of creating a

fund for the relief of honorably discharged

indigent members of the army, navy, air force,

marine corps, coast guard, and women's auxiliaries

of all wars or military expeditions in which the

United States of America has been, is, or may

hereafter be, a participant . . . and the indigent

spouses, minor children, and parents of each such

indigent or deceased member. . . . If any money in

the fund is not necessary for the purpose for which

it was raised, the money shall remain in the

treasury of the county as a soldiers' relief fund,

and shall be considered in raising future sums

therefor.

As can be seen, this section requires that the board of

commissioners create a soldiers’ relief fund by a tax levy.

It also, however, requires the commissioners to consider the

amount existing in the fund when determining the amount, if

1
This act was initially enacted in 1899 and amended in

1984 to update antiquated language.

3

any, of the annual levy for the fund.2

Having thus established the funding mechanism, the act

then continues by providing a procedure in MCL 35.23 for

initiating and determining the amount of relief to be granted.

This section states:

The supervisor of each township and ward in

each of the counties of this state, and where there

is no ward supervisor the aldermen of the several

wards of every incorporated city in this state,

shall, on or before the last Monday in September in

each year, make and place in the hands of the

soldiers' relief commission of the county, a list

of all the persons entitled to relief under the

provisions of this act, and the soldiers' relief

commission, on the first Monday in October in each

year, shall proceed to determine the amount

necessary for aid and relief to be granted such

persons under this act, which shall be then and

there recorded in the books to be kept by the

secretary of said soldiers' relief commission. The

commission may determine not only the sum to be

paid, but the manner of paying the same, and may

discontinue the payment of such relief in their

discretion. Appeal may be taken therefrom to the

circuit court of such county, by certiorari by

filing application therefor with the clerk within

fifteen days following the making of such decision.

The court shall hear the case de novo and its

decision shall be final.

What is established, then, is a scheme whereby it is

2
In response to the dissent, we note that, once the fund

is created, the act provides the commissioners with discretion

regarding the amount of the annual tax levy in light of any

amount existing in the fund. Moreover, at oral argument,

plaintiffs’ counsel conceded that the record did not establish

whether Macomb County had, at some time in the past, created

a fund by levying a tax in compliance with the act.

Presumably, the record is similarly unclear regarding whether

Wayne County, at some time in the past, created a fund by

levying a tax in compliance with the act.

4

anticipated that the township supervisor or ward aldermen will

annually prepare a list of persons eligible for relief and

provide this list to the soldiers’ relief commission.3 That

commission then, in its discretion, determines the amount of

relief, if any, to grant to the indigent, honorably discharged

veteran or dependent applicant. Moreover, the statute

provides that aggrieved applicants can appeal the commission’s

decision to the circuit court.

Facts and Proceedings

Here, without ever having sought relief under the act,

plaintiffs filed suit to compel Macomb and Wayne Counties to

levy the annual tax in order to create the fund of which the

act speaks. Further, they, and presumably others, will soon

seek damages for those years in which the counties allegedly

3
The statute requires the supervisor or alderman to

create such a list, but it does not specify the means for

identifying eligible persons. Clearly, the supervisor or

alderman can only place persons on this list if aware or made

aware that an eligible person is in need. The supervisor or

alderman can obviously act sua sponte and include on the list

any known eligible persons. However in order to fulfill the

duty to “make . . . a list of all the persons entitled to

relief under the provisions of this act,” he is also obligated

to add to the list any eligible person who asks to be included

on it. (Emphasis added.) This reading of the statute, rather

than one reposing veto power with the supervisor or alderman

regarding who will be included on the list, expands the

opportunities for eligible veterans who, for whatever reason,

have not been included on the list. We opt for this expansive

reading because this is a remedial statute and we are

obligated to read it liberally in favor of the indigent

veterans it is intended to benefit. See Chandler v Dowell

Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998).

5
failed to comply with the act.

Macomb County, in the Lee case, moved for summary

disposition, claiming, inter alia, lack of standing and

failure to exhaust administrative remedies. In support, it

provided the 1994 affidavit of its Department of Veterans

Affairs Director, which indicated that the department had,

through county budget appropriations, maintained a fund of

$1000 for veterans relief for several years and that no claims

for such relief had been filed for the past ten years. The

trial court granted Macomb County’s motion for summary

disposition, concluding that plaintiffs lacked standing and

failed to exhaust administrative remedies because they had not

requested relief from the local government.

Wayne County, in the Walker case, sought summary

disposition on similar grounds. It provided documentary

evidence indicating that, in 1994, the Wayne County Commission

approved an appropriation of $1,146,042 for Veterans’ Affairs

expenditures and that the Wayne County Soldiers Relief Program

had been operational since February 1995. In this case,

however, the trial court denied Wayne County’s motion for

summary disposition, concluding that plaintiffs had standing

because they were in the class intended to be benefitted by

the act and had been harmed by noncompliance with it and that

they were not required to exhaust administrative remedies to

challenge a wholesale failure to comply with the act.

6

 These two cases were consolidated in the Court of

Appeals, which largely reversed in Lee and affirmed in

Walker.4 The Court of Appeals majority concluded that

plaintiffs had standing because they are “members of the class

for whose benefit the Act was enacted” and because they are

“detrimentally affected in a manner different from the public

generally.” 235 Mich App 332. The panel held that mandamus

was an appropriate remedy here because plaintiffs were seeking

compliance with the act, not the levy of a particular amount

or the grant of particular benefits. Id. at 333-334.

Finally, it concluded that plaintiffs’ actions could not be

dismissed on the basis of failure to exhaust statutory

remedies because they were alleging a wholesale failure to

implement and comply with the act. Id. at 335.

In dissent, former Justice John Fitzgerald, sitting by

assignment, disagreed with the majority regarding standing:

[P]laintiffs have not alleged any specific

injury as a result of defendants' failure to

establish a mechanism for evaluation of a claim for

benefits or of defendants' underfunding of their

respective veterans' relief funds. [Id. at 337.]

Explaining further he said:

[P]laintiffs have not alleged a distinct and

palpable injury resulting from defendants' failure

to fully comply with the statute, and consequently

their claims cannot be differentiated from those of

4
The Court of Appeals ruled that government immunity

precluded plaintiffs’ negligence and gross negligence claims

in both cases.

7

 any other citizen. As a prudential matter, courts

must exercise their jurisdiction to address

tangible, personal, threatened interests, not

generalized grievances. I am not persuaded that

plaintiffs, as private citizens whose individual

rights under the statute have not been abridged,

have standing . . . . [Id. (citations omitted).]

Regarding mandamus, he stated that it was inappropriate,

assuming standing existed, because plaintiffs were “seeking to

compel defendants’ exercise of discretion in a particular

manner” that is beyond the scope of mandamus Id. at 338-339.

This Court granted leave to appeal. 462 Mich 912 (2000).

Standard of Review

Whether a party has standing is a question of law. This

Court reviews questions of law de novo. Stitt v Holland

Abundant Life Fellowship, 462 Mich 591, 595; 614 NW2d 88

(2000).

Standing

It is important, initially, to recognize that in

Michigan, as in the federal system, standing is of great

consequence so that neglect of it would imperil the

constitutional architecture whereby governmental powers are

divided between the three branches of government.

Standing, as a requirement to enter the courts, is a

venerable doctrine in the federal system that derives from US

Const, art III, § 1, which confers only “judicial power” on

the courts and from US Const, art III, § 2's limitation of the

8

judicial power to “Cases” and “Controversies.”5 In several

recent cases, the United States Supreme Court has discussed

the close relationship between standing and separation of

powers. In Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135

L Ed 2d 606 (1996), Justice Scalia, writing for the majority,

said:

[T]he doctrine of standing [is] 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.

[Citations omitted.]

Lewis was foreshadowed in Lujan v Defenders of Wildlife,

504 US 555, 559-560; 112 S Ct 2130; 119 L Ed 2d 351 (1992),

5
The first clause of US Const, art III, § 2 states:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to

all Cases affecting Ambassadors, other public

Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to

which the United States shall be a Party;—to

Controversies between two or more States;—between a

State and Citizens of another State;—between

Citizens of different States;—between Citizens of

the same State claiming Lands under Grants of

different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or

Subjects.

9

where Justice Scalia, again speaking for the Court, explained:

[T]he Constitution's central mechanism of

separation of powers depends largely upon common

understanding of what activities are appropriate to

legislatures, to executives, and to courts. . . .

One of those landmarks, setting apart the "Cases"

and "Controversies" that are of the justiciable

sort referred to in Article III—"serv[ing] to

identify those disputes which are appropriately

resolved through the judicial process,"—is the

doctrine of standing. Though some of its elements

express merely prudential considerations that are

part of judicial self-government, the core

component of standing is an essential and

unchanging part of the case-or-controversy

requirement of Article III. [Citations omitted.]

In Plaut v Spendthrift Farm, Inc, 514 US 211, 219-225;

115 S Ct 1447; 131 L Ed 2d 328 (1995), Justice Scalia, in

another majority opinion, provided a detailed analysis of the

concern with preserving the separation of powers between the

legislative and judicial branches, that traced its history

back to the framers of the U.S. Constitution.

Finally, Chief Justice Rehnquist even more dramatically

stated the case in his majority opinion in Raines v Byrd, 521

US 811, 818, 820; 117 S Ct 2312; 138 L Ed 2d 849 (1997):

“No principle is more fundamental to the

judiciary's proper role in our system of government

than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.”

* * *

“[T]he law of Art III standing is built on a

single basic idea—the idea of separation of

powers.”

In Michigan, standing has developed on a track parallel

10

to the federal doctrine, albeit by way of an additional

constitutional underpinning. In addition to Const 1963, art

6, § 1, which vests the state “judicial power” in the courts,

Const 1963, art 3, § 2 expressly directs that the powers of

the legislature, the executive, and the judiciary be

separate.6 Concern with maintaining the separation of powers,

as in the federal courts, has caused this Court over the years

to be vigilant in preventing the judiciary from usurping the

powers of the political branches. Early on, the great

constitutional scholar Justice Thomas M. Cooley discussed the

concept of separation of powers in the context of declining to

issue a mandamus against the Governor in Sutherland v

Governor, 29 Mich 320, 324 (1874):

Our government is one whose powers have been

carefully apportioned between three distinct

departments, which emanate alike from the people,

have their powers alike limited and defined by the

constitution, are of equal dignity, and within

their respective spheres of action equally

independent. One makes the laws, another applies

the laws in contested cases, while the third must

see that the laws are executed. This division is

accepted as a necessity in all free governments,

and the very apportionment of power to one

department is understood to be a prohibition of its

6

The powers of government are divided into

three branches: legislative, executive and

judicial. No person exercising the powers of one

branch shall exercise powers properly belonging to

another branch except as expressly provided in this

constitution.

11

 exercise by either of the others. The executive is

forbidden to exercise judicial power by the same

implication which forbids the courts to take upon

themselves his duties.

This position followed from the even earlier iteration of the

standing doctrine by Justice Campbell in 1859 when, speaking

for this Court, he said:

By the judicial power of courts is generally

understood the power to hear and determine

controversies between adverse parties, and

questions in litigation. [Daniels v People, 6 Mich

381, 388 (1859)(emphasis added).]

Later, in Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884),

this Court explained:

The judicial power referred to is the

authority to hear and decide controversies, and to

make binding orders and judgments respecting them.

[Emphasis added.]

More recently, Johnson v Kramer Bros Freight Lines, Inc, 357

Mich 254, 258; 98 NW2d 586 (1959), reaffirmed this concept by

quoting this portion of Risser.

In fleshing out the tests that a litigant must meet to

establish standing, the most recent majority iteration from

this Court7 is found in House Speaker v Governor, 441 Mich

547, 554; 495 NW2d 539 (1993):

Standing is a legal term used to denote the

existence of a party's interest in the outcome of

litigation that will ensure sincere and vigorous

advocacy. However, evidence that a party will

7
This Court addressed standing in Detroit Fire Fighters

Ass’n v Detroit, 449 Mich 629; 537 NW2d 436 (1995), but a

majority did not agree on a standing test.

12

 engage in full and vigorous advocacy, by itself, is

insufficient to establish standing. Standing

requires a demonstration that the plaintiff's

substantial interest will be detrimentally affected

in a manner different from the citizenry at large.

House Speaker provided a general description of standing and

articulated the requirement of an interest distinct from that

of the public. However, further explication of the essential

elements of standing has proven difficult as demonstrated by

this Court’s experience in attempting to fashion a clear

majority in Detroit Fire Fighters Ass’n v Detroit, 449 Mich

629; 537 NW2d 436 (1995). In that case, the separate opinions

suggested different inquiries as being central to determining

standing. Some focused on whether the plaintiff could

establish an injury distinct from that of the public, others

on whether the plaintiffs were in the zone of interest the

statutory or constitutional provision at issue is designed to

regulate. Perhaps the clearest template was set forward by

Justice Cavanagh who, along with Justice Boyle, advocated

adopting the United States Supreme Court’s Lujan test. Lujan

held:

Over the years, our cases have established

that the irreducible constitutional minimum of

standing contains three elements. First, the

plaintiff must have suffered an "injury in fact"—an

invasion of a legally protected interest which is

(a) concrete and particularized, and (b) "actual or

imminent, not 'conjectural' or 'hypothetical.' "

Second, there must be a causal connection between

the injury and the conduct complained of—the injury

has to be "fairly . . . trace[able] to the

challenged action of the defendant, and not . . .

13

 th[e] result [of] the independent action of some

third party not before the court." Third, it must

be "likely," as opposed to merely "speculative,"

that the injury will be "redressed by a favorable

decision."

The party invoking . . . jurisdiction bears

the burden of establishing these elements. [504 US

560-561 (citations omitted).]

In our view, the Lujan test has the virtues of articulating

clear criteria and of establishing the burden of demonstrating

these elements. Moreover, its three elements appear to us to

be fundamental to standing; the United States Supreme Court

described them as establishing the “irreducible constitutional

minimum” of standing. We agree. Accordingly, we now join

Justice Cavanagh’s view and adopt the Lujan test, which should

be seen as supplementing the holding in House Speaker, as well

as this Court’s earlier standing jurisprudence, e.g., Daniels

and Risser, supra.

Applying this test in the present case, it is clear that

plaintiffs lack standing. In Lujan terms, they have not yet

suffered any “injury in fact.” See 504 US 560. Specifically,

they have shown no “invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual or

imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 560.

Both groups of plaintiffs have alleged and argued only that

they “should receive” and “should have received, the benefit

of the property tax levy required by MCL 35.21,” and that the

failure to levy and collect the tax set forth in the soldiers’

14

relief fund act “has caused, and continues to cause,

plaintiffs great harm and damage.” Even if accepted as true,

these allegations cannot satisfy the Lujan injury in fact

requirement because it is not readily apparent how the

collection of a tax pursuant to the act would have benefitted

plaintiffs in a concrete and particularized manner. MCL 35.23

provides that the soldiers’ relief commission is to determine

the amount and manner of any relief thereunder and that it may

discontinue such relief in its discretion. Thus, the amount

of relief, if any, that plaintiffs might have received under

this act is solely within the discretion of the commission.8

“[G]reat harm and damage” is not concrete or particularized.

Plaintiffs also fail to explain, with particularity, what is

meant by “the benefit of the property tax levy required by MCL

8
The dissent argues that it is “inescapable” that relief

under that act would have benefitted the indigent plaintiffs

in a concrete and particularized manner. Slip op, p 8. We

surmise that the idea is that any claimant would be better off

with more money. Yet this verity misses the point. The issue

is whether plaintiffs can demonstrate a concrete and

particularized injury arising out of the alleged failure of

the counties to levy a tax in accordance with the act.

Moreover, even if we jump ahead, as the dissent would, to the

point where fund distribution to plaintiffs was at issue, it

is not “inescapable” that plaintiffs would receive funds

because the commission would likely exercise its discretion to

avoid duplicating other government and private social welfare

programs. Thus, the commission could, even if plaintiffs were

indigent, decide not to award funds to them.

Thus, for all these reasons, what might be received, if

anything, far from being concrete and particularized, is

simply uncertain.

15

35.21.” At most, we can only speculate how the existence of

a fund would have helped plaintiffs. Accordingly, plaintiffs

lack standing to pursue the present actions.

In the absence of standing, we will not address

plaintiffs’ substantive claims.

Conclusion

Plaintiffs do not have standing to bring the present

actions. We accordingly reverse the Court of Appeals

determination that they have standing and remand these actions

to the respective circuit courts for entry of orders

dismissing plaintiffs’ actions on the basis of lack of

standing.

CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with

TAYLOR, J.

16

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL LEE, BRYAN DUNCIL, MARY

DUNCIL on behalf of herself and

JOSEPH DUNCIL, BRYAN DUNCIL, KENNETH

DUNCIL, and JON DUNCIL, as their

Next Friend, and the class of all

others similarly situated,

Plaintiff-Appellees,

v No. 114700

THE MACOMB COUNTY BOARD OF

COMMISSIONERS, and the COUNTY OF

MACOMB,

Defendant-Appellants.

____________________________________

DENNIS D. WALKER, on behalf of

himself and DAWNELL J. WALKER and

MELANIE WALKER, their Next Friend,

and DWAYNE STEAGALL, ERNEST GROCE,

JERRY GRAY, PAUL ECKLEY, DUANE GORE,

KENNETH JONES, MORRIS BARTOLOTTA, and

the class of all others similarly

situated,

Plaintiffs-Appellees,

v No. 115259

THE WAYNE COUNTY BOARD OF

COMMISSIONERS and THE COUNTY

OF WAYNE,

Defendants-Appellants.

____________________________________

WEAVER, J. (concurring).

 I concur in the majority’s decision to reverse the

judgment of the Court of Appeals. I write separately because

I disagree with the majority’s decision to adopt the Lujan1

standing requirements. I would find that the plaintiffs have

standing. However, I agree with the decision to reverse;

because the relief requested is a discretionary act, I would

find that mandamus is not an appropriate remedy in this case.

Although I would hold that no relief can be granted in

this case, I am still cognizant of the great debt that our

society owes to its veterans. The soldiers’ relief act was

first enacted in 1899, “to provide relief outside of the

soldiers’ home for honorably discharged indigent soldiers,

sailors and marines, and the indigent wives, widows and minor

children of such indigent or deceased soldiers, sailors and

marines . . . .” 1899 PA 214. I think it is appropriate to

consider the last paragraph of the report on the Spanish-

American War included in the Michigan Legislative Manual and

Official Directory for the years 1899-1900, p 693:

The forces that went into the war with Spain,

from Michigan, were actuated by the highest

motives. They came from every employment and walk

of life, yet none entered that service without a

sacrifice. All left peaceful homes with

comfortable surroundings and sure sources of income

to risk their lives in battle or in camp in

1
Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct

2130; 119 L Ed 2d 351 (1992).

2

 response to the call of duty and patriotism. Some

were killed in battle, others died of diseases

incident to life in camp under new and untried

conditions. Some came home comparatively unharmed,

while others, and very many others, came bringing

with them the seeds of disease and infirmities from

which they will always suffer. There is but one

proposition to make. The people of Michigan in

common with the people of this great nation owe a

debt of gratitude and love to those who in any way

represented them in the glorious contest for

humanity so happily and successfully ended by our

treaty of peace with Spain, and we should not

forget now or hereafter any of the obligations

imposed on us by this debt.

I

Unlike constitutional cases in federal courts, the

Michigan standing requirements have been based on prudential,

rather than constitutional, concerns. See, generally, House

Speaker v State Administrative Bd, 441 Mich 547, 559, n 20;

495 NW2d 539 (1993), and Justice R ILEY ’s dissent in Detroit

Fire Fighters Ass’n v Detroit 449 Mich 629; 537 NW2d 436

(1995). Both this Court and the United States Supreme Court

have recognized that we are not required to comply with the

federal rules regarding standing.2 I believe that adopting

2
In House Speaker we stated that “this Court is not bound

to follow federal cases regarding standing,” pointing out that

“[o]ne notable distinction between federal and state standing

analysis is the power of this Court to issue advisory

opinions. Const 1963, art 3, §8. Under Article III of the

federal constitution, federal courts may issue opinions only

where there is an actual case or controversy.” Id., p 559,

including n 20. Justice Kennedy, writing for the Court in

ASARCO Inc v Kadish, 490 US 605, 617; 109 S Ct 2037; 104 L Ed

(continued...)

3

the federal standing test as set forth in Lujan v Defenders of

Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992),

is unnecessary; therefore I decline to supplement the current

standing doctrine of this Court.

Applying Michigan’s traditional rules of standing, I

would find that the plaintiffs have standing to bring the

present action. In Michigan, it is well settled that all

disgruntled citizens do not automatically have standing to sue

a public body. In House Speaker, supra at 554, we said:

Standing is a legal term used to denote the

existence of a party’s interest in the outcome of

litigation that will ensure sincere and vigorous

advocacy. However, evidence that a party will

engage in full and vigorous advocacy, by itself,

is insufficient to establish standing. Standing

requires a demonstration that the plaintiff’s

substantial interest will be detrimentally affected

in a manner different from the citizenry at large.

The usual rule has been that a private citizen has no standing

to vindicate a public wrong or enforce a public right where

that citizen has not been hurt in any manner different than

the citizenry at large. Waterford Sch Dist v State Bd of Ed,

98 Mich App 658, 662; 296 NW2d 328 (1980).

2
(...continued)

2d 696 (1989), acknowledged:

We have recognized often that the constraints

of Article III do not apply to state courts, and

accordingly the state courts are not bound by the

limitations of a case or controversy or other

federal rules of justiciability . . . .

4

 However, while a private suit is generally precluded when

a violation of a public duty is claimed, a private action can

be maintained if the public duty also was intended to benefit

private individuals. Taylor v Lake Shore & M S R Co, 45 Mich

74, 77; 7 NW 728 (1881). Justice C OOLEY , speaking for the

Court, explained that “[t]he nature of the duty and the

benefits to be accomplished through its performance must

generally determine whether it is a duty to the public in part

or exclusively, or whether individuals may claim that it is a

duty imposed wholly or in part for their especial benefit.”

Id. See also Gardner v Wood, 429 Mich 290; 414 NW2d 706

(1987).

The plain language of the soldiers’ relief fund act3

unequivocally supports the notion that the statute was enacted

solely to benefit citizens in the same class as the

plaintiffs, i.e., honorably discharged, indigent veterans.

Clearly, the plaintiffs possess an interest in the soldiers’

relief fund that is “different from the public at large.”

Moreover, the relief sought does indeed more directly and

3

The county board of commissioners of each

county shall annually levy, a tax not exceeding

1/10 of a mill on each dollar . . . for the purpose

of creating a fund for the relief of honorably

discharged indigent members of the army, navy, air

force, marine corps, coast guard, and women’s

auxiliaries of all wars or military

expeditions . . . . See MCL 35.21.

5

tangibly benefit the plaintiffs than it does the public at

large. In this case, the plaintiffs made a proper showing

that they were injured in a manner distinct from the citizenry

at large. Therefore, I would find that the plaintiffs have

standing to pursue the instant action.

II

Plaintiffs ask that the defendant counties be ordered to

begin assessing taxes to maintain their soldiers’ relief

funds. However, this particular duty, which is covered by MCL

35.21, is discretionary, and therefore is not a proper subject

for mandamus. Because I would find that mandamus is not an

appropriate remedy in this case, I agree with the majority’s

result.

It is well settled that an order of mandamus will be

issued only if the plaintiffs have a clear legal right to the

performance of the specific duty sought to be compelled and

the defendant has a clear legal duty to perform the same.

State Bd of Ed v Houghton Schs, 430 Mich 658, 666; 425 NW2d 80

(1988). The act sought to be compelled must not be

discretionary. It must be of a ministerial nature, and it

must be prescribed by law with such precision and certainty as

to leave nothing to the exercise of discretion or judgment.

If any reasonable doubts exist regarding the question of

6

discretion or want of discretion, the courts will hesitate to

interfere. See In re MCI Telecommunications, 460 Mich 396;

596 NW2d 164 (1999), Oakland Schs Bd of Ed v Sup’t of Pub

Instruction, 401 Mich 37; 257 NW2d 73 (1977) and Taylor v

Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955).

Here, the county board of commissioners is given the

authority and the discretion to determine the amount of the

tax to be levied; the only limit it is given is that it not

exceed 1/10 of a mill. The first sentence of MCL 35.21

provides:

The county board of commissioner of each

county shall annually levy, a tax not exceeding

1/10 of a mill on each dollar, to be levied and

collected as provided by law, upon the taxable

property of each township and city, for their

respective counties, for the purpose of creating a

fund for the relief of honorably discharged

indigent . . . .

Further, the last sentence of MCL 35.21 states

If any money in the fund is not necessary for

the purpose for which it was raised, the money

shall remain in the treasury of the county as a

soldiers' relief fund, and shall be considered in

raising future sums therefor.

Additionally, the soldiers’ relief commission is required to

make an annual report of the money on hand, the money it is

expending, and how much it believes will be needed for the

next year. Therefore the relief requested by the plaintiffs,

7

that the defendant counties be ordered to begin assessing

taxes under the statute, is a discretionary act, and mandamus

is not an appropriate remedy.

There is no specific relief the Court could provide, as

we cannot require the county to assess a specific amount.

Accordingly, I concur with the majority opinion’s result

reversing the judgment of the Court of Appeals.

8

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL LEE, BRYAN DUNCIL, MARY

DUNCIL on behalf of herself and

JOSEPH DUNCIL, BRYAN DUNCIL,

KENNETH DUNCIL, and JON DUNCIL,

as their Next Friend, and the class

of all others similarly situated,

Plaintiffs-Appellees,

v No. 114700

THE MACOMB COUNTY BOARD OF

COMMISSIONERS, and the COUNTY OF

MACOMB,

Defendants-Appellants.

___________________________________

DENNIS D. WALKER, on behalf of

himself and DAWNELL J. WALKER and

MELANIE WALKER, their Next Friend,

and DWAYNE STEAGALL, ERNEST GROCE,

JERRY GRAY, PAUL ECKLEY, DUANE GORE,

KENNETH JONES, MORRIS BARTOLOTTA,

and the class of all others similarly

situated.

Plaintiffs-Appellees,

v No. 115259

THE WAYNE COUNTY BOARD OF

COMMISSIONERS and the COUNTY OF

WAYNE,

Defendants-Appellants.

___________________________________

KELLY, J. (dissenting).

I disagree with the majority's reversal of the Court of

Appeals decision. I believe plaintiffs have standing to bring

the current actions and mandamus has been appropriately

sought. I would affirm the Court of Appeals decision that

reversed summary disposition in favor of Macomb County and

affirmed denial of Wayne County's motion for summary

disposition.

I. THE STATUTES

Plaintiffs alleged in their complaints that defendants

violated the soldiers' relief fund act1 by failing to comply

with their duty to levy and collect a tax and perform other

obligations. Section 1 of the act creates a relief fund by

mandating an annual tax levy and payment of the moneys

collected to the county treasurer. MCL 35.21.

The method for disbursing moneys from the fund appears at

§ 3 of the act. This section mandates the compilation of a

list of persons entitled to relief under the act and a

1
MCL 35.21 et seq.

2

determination of the amount of relief to be granted to such

persons. MCL 35.23.2

In summary, a relief fund was to be established and an

annual compilation of the names of persons entitled to monies

from the fund was to be made. Many of the actions of the

county board of commissioners, the township supervisors and

the soldiers' relief commission that are described in the

statute are mandatory, as evidenced by use of the word

"shall."

Under the act, the county board of commissioners has a

duty to levy a tax annually. The supervisor of each township

and ward is obligated to make a list of persons eligible for

relief and give that list to the soldiers' relief commission.

The soldiers' relief commission must determine the amount of

money to be distributed to the persons on the list. The

county board of commissioners is obligated to pay the money

from the taxes to the county treasurer, who disburses the

money at the order of the soldiers' relief commission.

The majority focuses on the discretion that the act gives

the soldiers' relief commission to set the amount to be

distributed. However, plaintiffs do not allege that the

2
Pursuant to MCL 35.622, the soldiers' relief commission

was declared inoperative and its duties and powers transferred

to the county department of veterans' affairs. This opinion

will continue to refer to the soldiers' relief commission for

the sake of consistency.

3

soldiers' relief commission failed to comply with the act, nor

do they request money from it. Rather, plaintiffs seek to

compel the creation of a relief fund through the levy and

collection of an annual tax. The majority's reliance on the

discretion of the soldiers' relief commission ignores the fact

that the act gives no discretion whatsoever regarding whether

taxes are levied and a fund created. It mandates these acts

and directs the board of commissioners to accomplish them.

In the cases before us, plaintiffs claim that the county

boards of commissioners failed to comply with the act and

perform their nondiscretionary duties. Plaintiffs alleged in

their complaints that the county boards of commissioners had

not at any time levied a tax for the soldiers' relief fund.3

This failure to comply with the nondiscretionary obligations

3
It appears that the allegation regarding the Macomb

County Board of Commissioners may have been overstated.

Plaintiffs' counsel conceded during oral argument that the

record does not establish whether a fund was created in Macomb

County at sometime in the past and later eliminated.

Nevertheless, it must be remembered that these cases challenge

rulings made on motions for summary disposition brought under

MCR 2.116(C)(8). In ruling on these motions, only the

pleadings are considered. Maiden v Rozwood, 461 Mich 109,

119-120; 597 NW2d 817 (1999). Therefore, the concession is

not relevant to the resolution of this appeal.

Moreover, plaintiffs' complaints alleged ongoing

violations of the act. Whether a fund went into and out of

existence during the last century has no bearing on the

allegation that the Macomb County Board of Commissioners

failed to comply with the act at the time plaintiffs filed

their complaint.

4

of the act is the basis of plaintiffs' claims. Hence, the

majority's focus on the discretionary nature of the soldiers'

relief commission's duties camouflages the relevant fact: no

discretion exists that permits the county boards of

commissioners not to levy taxes for a soldiers' relief fund.4

II. STANDING

The trial court decisions in these matters were made on

motions for summary disposition and are reviewed de novo.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In

both cases, defendants challenged plaintiffs' standing under

MCR 2.116(C)(8). Such motions test the legal sufficiency of

the complaint, and, when ruling on them, the court may

consider only the pleadings. A trial judge may grant summary

disposition where the claims alleged are "so clearly

unenforceable as a matter of law that no factual development

could possibly justify recovery." Id. at 119.

The majority has concluded that summary disposition was

properly granted to Macomb County and improperly denied to

Wayne County. It adopts the test for standing articulated in

Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119

4
As noted by the majority and the concurrence, the act

gives the county boards of commissioners discretion in

determining the amount of the annual tax levy. However, this

fact does not in any way undermine plaintiffs' claims. As

evidenced by the word "shall," there is no discretion

regarding whether to levy an annual tax.

5

L Ed 2d 351 (1992). It then finds that plaintiffs failed to

establish standing under the test.

While I agree with the majority's adoption of the Lujan

test, I cannot agree that plaintiffs lack standing. That

conclusion ignores the nature of plaintiffs' claims.

Plaintiffs did not appeal from the denial of benefits under

the act. Instead, they sought to compel defendants to comply

with the act. That the amount of relief "is solely within the

discretion of the commission" is irrelevant to a determination

of the injury plaintiffs sustained from defendants' failure to

establish a relief fund in compliance with the act.

To withstand summary disposition on the basis of

standing, plaintiffs must plead that they suffered an injury

in fact through defendants' failure to comply with the

mandates of the soldiers' relief fund act. They have done so.

They have alleged that they are members of the class of

persons for whose benefit the fund was intended. They have

alleged that defendants failed to (1) levy a tax to establish

the relief fund, and (2) pay the collected moneys to the

county treasurer, both of which were for the benefit and

relief of plaintiffs. Plaintiffs have asserted that, because

defendants failed to comply with the act and establish the

fund, plaintiffs could not apply for or receive benefits to

which the act entitled them.

6

 Because plaintiffs have alleged failure to establish a

relief fund and denial of the opportunity to apply for or

receive its benefits, they have sufficiently asserted an

injury in fact. There is no need for them to allege precisely

how the fund would have helped them. Had it been established,

plaintiffs have alleged that they would have applied for

financial assistance.

It is inescapable that the creation of a fund and the

opportunity for indigents to receive its financial assistance

would have benefitted plaintiffs in a concrete and

particularized manner. By definition, to be indigent is to be

"needy and poor, or one who has not sufficient property to

furnish him a living nor anyone able to support him to whom he

is entitled to look for support." Black's Law Dictionary (6th

ed). Through their assertions, plaintiffs have sufficiently

alleged "specific, concrete facts demonstrating that the

challenged practices harmed [them], and that [they] personally

would benefit in a tangible way from the court's

intervention." Warth v Seldin, 422 US 490, 508; 95 S Ct 2197;

45 L Ed 2d 343 (1975).

The majority determines that plaintiffs' claims are

"uncertain" because plaintiffs do not allege a likelihood that

the soldiers' relief commission would have granted funds to

them. Under this test, no plaintiffs could ever have standing

7

to contest defendants' failure to establish a relief fund. No

plaintiff could know how a soldiers' relief commission would

have exercised its discretion. If plaintiffs' had sought

relief within the discretion of the soldiers' relief

commission, what could they be required to allege to defeat a

motion for summary disposition under MCR 2.116(C)(8)? I

submit that it is only that, under a reasonable exercise of

discretion, the soldiers' relief commission would have granted

them relief. Plaintiffs in these cases made that showing by

alleging their eligibility, as veterans and as indigents.

However, that the amount of relief distributed was solely

within the discretion of the soldiers' relief commissions is

in no way related to whether plaintiffs suffered an injury in

fact. Since plaintiffs alleged injury from defendants'

failure to establish funds in accordance with the act, the

issue of discretion in administering the funds is irrelevant.

Plaintiffs also adequately pleaded facts that established

the second element of the Lujan test. The causal connection

between their alleged injuries and defendants' alleged conduct

or failure to act is illustrated in the reasoning above. If

defendants had complied with the requirements of the act,

plaintiffs have asserted that they would have applied for

benefits. There is no indication that the failure to comply

8

with the provisions of the act was the result of the

independent action of a third party.

Finally, plaintiffs have pleaded facts sufficient to

fulfill the third element of the Lujan test. They seek to

compel defendants' full compliance with the soldiers' relief

fund act. On the basis of the pleadings, plaintiffs have

alleged sufficient facts to establish that their injuries

would be redressed if these cases were returned for further

proceedings.

For these reasons, I would conclude that plaintiffs have

standing under the test in Lujan.

III. MANDAMUS

Mandamus is an extraordinary remedy that cannot be

invoked to compel discretionary actions. Teasel v Dep't of

Mental Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984).

However, an order of mandamus can be issued where "a body or

an officer [is] charged with a duty to take action in the

matter, notwithstanding the fact that the execution of that

duty may involve some measure of discretion." Id. at 410.

Therefore, mandamus can compel a body or officer to

exercise discretion, but cannot compel the manner in which the

discretion is exercised. Id. To issue an order of mandamus,

9

a defendant must have a clear legal duty and a plaintiff must

have a clear legal right to have the duty performed. Toan v

McGinn, 271 Mich 28, 33; 260 NW 108 (1935).

The relevant parts of the soldiers' relief fund act are

phrased in terms of clear legal duties that are applicable to

defendants. Under the act, the county board of commissioners

is charged with the duty of levying taxes on an annual basis.

It is the exercise of duty that plaintiffs seek to compel, a

proper purpose for the issuance of an order of mandamus.

The act also imposes a legal duty on defendants to create

a fund for the relief of honorably discharged indigent

veterans and their indigent spouses, minor children, and

parents. It establishes a clear legal right to relief for

certain persons, including the class that plaintiffs seek to

represent. Whether persons eligible under the act receive

relief is dependent on compliance by defendants in

establishing a relief fund. Defendants have clear legal

duties and plaintiffs have a clear legal right to have

defendants perform their duties. Mandamus is appropriately

sought.

IV. CONCLUSION

The soldiers' relief fund act, however arcane, is valid

and binding law. The Legislature could have chosen to repeal

it at any time during the last century, but did not do so.

10

Moreover, it is apparent from the fact that the Legislature

amended the act in 1984 that it made a conscious decision not

to repeal it.

The majority's reliance on that portion of the act giving

the soldiers' relief commission discretion in granting relief

ignores the nature of plaintiffs' claims. Plaintiffs did not

contend that the soldiers' relief commission failed to comply

with the act. Nor did plaintiffs seek relief within the

discretion of that commission. Therefore, the fact that the

amount of relief "is solely within the discretion" of the

soldiers' relief commission, as the majority points out, is

irrelevant to the claims presented here. What plaintiffs seek

is to compel the county boards of commissioners to comply with

their mandatory obligation to annually levy taxes and to

create relief funds.

As noted by the majority, the soldiers' relief fund act

is remedial and should be read liberally in favor of

plaintiffs, its intended beneficiaries. See Chandler v Dowell

Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998).

Plaintiffs alleged that they suffered an injury in fact

through defendants' failure to establish relief funds and

denial of the opportunity to apply for or receive benefits

under the act. These claims are not so unenforceable as a

matter of law that no factual basis could possibly justify

11

recovery.

Plaintiffs have satisfied the criteria under the Lujan

test, establishing standing. The soldiers' relief fund act

charges defendants with the duty to take action in plaintiffs'

interest. Hence, the Court of Appeals correctly determined

that plaintiffs had standing to bring suit and that mandamus

was a proper remedy. Accordingly, I would affirm the decision

of the Court of Appeals.

CAVANAGH , J., concurred with KELLY , J.

12