Straus v. Governor

*546Cavanagh, J.

(concurring in part and dissenting in part). I concur in the majority’s determination that the Board of Education and the Department of Education are part of the executive branch. However, I cannot agree with its holding that Executive Orders 1996-11 and 1996-12 are constitutional. The majority does not give effect to the language of Const 1963, art 8, § 3 or to the historical circumstances surrounding its adoption. Article 8, § 3 explicitly vests the Board of Education with “[leadership and general supervision” over public education. It also subordinates the superintendent to the authority of the board, making him responsible for the execution of the board’s mandates. I believe the Governor cannot subvert this constitutional structure by shifting responsibilities from the board to the superintendent. Therefore, I dissent.

I. THE GOVERNOR’S AUTHORITY OVER THE EXECUTIVE BRANCH

I agree with the majority’s holding that the board and the Department of Education are part of the executive branch of government, and, as such, are subject to the Governor’s authority to reorganize the executive branch under Const 1963, art 5, § 2. House Speaker v Governor, 443 Mich 560, 587; 506 NW2d 190 (1993). The Governor may “enact laws affecting the executive branch, just as the Legislature can.” Id. at 578. However, while the Governor’s power to reorganize the executive branch is extensive, it is not absolute. First, the text of art 5, § 2 allows the Legislature to “veto” an executive order that it does not agree with. Soap & Detergent Ass’n v Natural Resources *547Comm, 415 Mich 728, 752; 330 NW2d 346 (1982).1 Second, and relevant to this case, the Governor must work within the confines of the constitution itself. He cannot use his organizational powers to intrude into another constitutional body’s “sphere of authority.” Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 408; 292 NW2d 442 (1980).

The majority relies on the Governor’s argument that he is within his art 5, § 2 power because the executive orders at issue only involve the transfer of statutory functions. In addition, both of the orders specifically state “[n]othing in this executive order should be construed to diminish the constitutional authority of the State Board of Education to provide leadership and general supervision over all public education . . . .” However, such superficial arguments fail to give weight to the constitutional authority vested in the Board of Education. The Governor cannot reorganize the Department of Education in such a way that infringes the board’s constitutional role, regardless of whether the executive order purports merely to shift “statutory” functions. House Speaker, 443 Mich 592. If the board’s position as the head of the Department of Education is mandated by the constitution, as argued by plaintiffs, then the prior legislative2 and executive3 pronouncements are merely statements recognizing the structure of the Department of Education that is required by the constitution. Similarly, if the statutory duties placed on the board by the Legislature are mandated by the constitution, then they may not be shifted to another part of *548the executive branch. Moreover, the inclusion of the language “[njothing in this Executive Order should be construed to diminish the constitutional authority of the State Board of Education” cannot save the executive order if it actually does infringe on the board’s constitutional authority. See Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997) (in construing the constitutionality of a statute, the reviewing court must examine the statute’s requirements rather than the method by which the statute is administered).

In short, determining whether the Governor was acting within his power under art 5, § 2 requires one to analyze the relationship between the State Board of Education and the State Superintendent established in Const 1963, art 8, § 3. If the executive orders in this case violate the respective powers and duties intended under that portion of the constitution, then the executive orders cannot stand.

H. CONST 1963, ART 8, § 3 AND THE AUTHORITY OF THE BOARD OF EDUCATION

The respective duties of the Board of Education and the Superintendent of Public Instruction are provided in Const 1963, art 8, § 3. That constitutional provision provides in pertinent part:

Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith.
*549The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.

The dispute in the present case centers on the meaning of “[¡leadership and general supervision over all public education.” Plaintiffs argue that by vesting the board with “[leadership and general supervision,” the constitution gives the board broad powers to control public education in the state. This power requires that the board head the Department of Education, and the superintendent is designed to serve the board by executing its directives. Defendant, on the other hand, argues that “[leadership and general supervision” gives the board a more remote, policy-making function, while the superintendent is responsible for the day-to-day operation and administration of the Department of Education.

A. RULES OF CONSTITUTIONAL CONSTRUCTION

When interpreting the constitution, a reviewing court must first examine the “common understanding” of its language. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). This is because “ ‘[a] constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it.’ ” Id. (emphasis deleted). If the meaning of the words used is clear, then the court need not look any further. Attorney General v State Bd of Assessors, 143 Mich 73, 76-77; 106 NW 698 (1906). Where, however, *550there is no clear common understanding from the language used, the court may also look to “the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished” by the provision. Council of Organizations, 455 Mich 569; Kearney v Bd of State Auditors, 189 Mich 666, 673; 155 NW 510 (1915).

B. TEXT OF CONST 1963, ART 8, § 3

The majority gives too little weight to the verbiage used in art 8, § 3. While the constitution does not specifically state that the Board of Education is to “head” the Department of Education, it does vest the board with “[leadership and general supervision over all public education.” I believe the common understanding of these terms means that the board must be in charge of, direct, and control public education. Justice Black’s concurrence in Welling v Livonia Bd of Ed, 382 Mich 620, 625; 171 NW2d 545 (1969), explained that through the adoption of the 1963 Constitution:

[T]he framers proposed and the people adopted a new policy for administration of the system. Now the State board of education, unfettered by those qualifying words “prescribed by law” or “provided by law,” is armed and charged exclusively with the power and responsibility of administering the public school system which the legislature has set up and now maintains pursuant to section 2 of the eighth article. By section 3 of the same article, the board has been directed — not by the legislature but by the people — to lead and superintend the system and become, exclusively, the administrative policy-maker thereof.

See also Council of Organizations, 455 Mich 588 (Cavanagh, J, concurring) (“The term ‘control’ is synonymous with the constitutional phrase *551‘[leadership and general supervision,’ Const 1963, Art 8, § 3, in the context of public education”).

Indeed, the verb “lead” is commonly defined as to “direct the operations, activity, or performance of,” to “have charge of,” or to “go at the head of.” Webster’s Ninth New Collegiate Dictionary, p 679. Supervise is to “superintend” or to “oversee.” Id. at 1185. To give effect to these terms, the board must be placed in a position to “lead” and “supervise” public education. To the extent that the Department of Education is the body that is in charge of executing educational programs mandated and funded by the Legislature, the board must maintain a position within that department that allows it to lead and supervise. In other words, the board must act as the head of the Department of Education so that it may carry out its constitutional mandate. Any other structure would undermine the language of art 8, § 3.

This provision also defines the duties of the State Superintendent of Public Instruction. The superintendent is responsible for the execution of the board’s mandates, and serves as the principal executive officer of the State Department of Education. Significantly, the provision does not place the superintendent as the “head” of the Department of Education, but, rather, as the “principal executive officer.” This language tracks that of the previous sentence, which makes the superintendent “responsible for the execution of [the board’s] policies.” Thus, the language of art 8, § 3 establishes the superintendent as the executive arm of the board and makes him responsible for implementation of the board’s mandates. It does not contemplate an independent superintendent with authority outside that given by the board.

*552The language of art 8, § 3 establishes the Board of Education at the top of the education pyramid in this state. The superintendent follows next, and is charged with executing the mandates of the board. This structure requires the board to “lead” and “supervise” the Department of Education, because that is the department charged with executing educational programs throughout the state.4

m. CIRCUMSTANCES SURROUNDING THE ADOPTION OF ART 8, § 3

The majority also ignores the history and circumstances surrounding the adoption of art 8, § 3. This history and circumstances evidence a clear intent to establish an hierarchical relationship between the board and the superintendent where the superintendent’s power and authority flow from the board. *553Thus, neither the Legislature nor the Governor should be able to alter this relationship by shifting authority for certain responsibilities from the board to the superintendent.

Before the 1963 Constitution, the Superintendent of Public Instruction was designated to supervise public education in the state. As explained by the Court of Appeals dissent:

Const 1835, art 10, § 1 provided for a Superintendent of Public Instruction, to be appointed by the Governor, “whose duties shall be prescribed by law.” Const 1850, art 8, § 1 provided for the popular election of a Superintendent of Public Instruction who, under art 13, § 1, “shall have the general supervision of public instruction, and his duties shall be prescribed by law.” Const 1850, art 13, § 9 also created an elected board charged with general supervision over the state normal school and other duties “prescribed by law.” Const 1908, art 11, § 2 also provided for the popular election of the Superintendent of Public Instruction, giving him the responsibility for “general supervision of public instruction in the state”; Const 1908, art 11, § 6 also continued the limitation on the role of the elected board to supervision of the state normal college and the state normal schools and to such duties “prescribed by law.” [230 Mich App 248-249.]

However, Const 1963, art 8, § 3 substantially changed the relationship between the board and the superintendent. First, the board, rather than the superintendent, is responsible for the leadership and general supervision of public education. The superintendent is charged with executing the mandates of the board and is also assigned the position of “principal executive officer of a state department of education.” Const 1963, art 8, § 3.

*554Indeed, this shift in power is one of the main themes running through the convention debates.5 For example, the committee on education stated in support of the proposed constitutional language:

The enlarged state board finally gives Michigan a policy making body on a state level similar to the local boards of education. Michigan is 1 of 3 states that does not have such a board. For many years there have been grave doubts about the advisability of policies and procedures determined by a superintendent of public instruction alone. [1 Official Record, Constitutional Convention 1961, pp 1188-1189.]

Delegate Romney expounded on the transfer of power in his remarks:

The present constitution gives the superintendent of public instruction very broad authority over education, but he is not properly equipped either from the standpoint of staff and department or from the standpoint of ability to cover the full field to discharge that function. This contemplates the establishment of this board with these broad functions and, certainly, this provides a more suitable means of discharging these important functions. [Id. at 1190.]

Delegate Brake voiced his opinion that the Board of Education should be the dominant force in educational decision making:

[T]he 8 members of the board should lay down the policy to be followed by this board. They should make the deci*555sions. They know what the problems are. They should be the dominant force. . . . My first premise is that the board ought to run this show. [Id. at 1193.]

Thus, the 1963 Constitution contemplated a marked shift in power from the superintendent to the board. In particular, the power to implement “policies and procedures,” id. at 1188, formerly determined by the superintendent was transferred to the board.6

Second, the superintendent is no longer elected, but, rather, appointed by the board. The board also selects the term to be served as superintendent. Through this change, the superintendent is no longer directly accountable to the electorate. Instead, the superintendent’s authority flows from the board.

*556Much of the debate at the constitutional convention focused on the change relative to the roles of the board and the superintendent and the source of the superintendent’s authority under the new constitution. In particular, the delegates extensively debated a proposal to have the superintendent elected by the public to a four-year term rather than appointed by the board. Id. at 1212. The delegates supporting an elected superintendent were concerned that the superintendent derived his authority from the board as opposed to the electorate. As explained by the minority report of the education committee:

The heart of the question over whether or not the state superintendent of public instruction should be elected by the people or appointed by a state board of education is the question: is Michigan to have a strong superintendent of public instruction who is to be a policymaker by dint of his own strength as the choice of the people, or are we to have a superintendent who is granted his strength and guaranteed his weaknesses by virtue of the whim of a board of education which, even if elected, will by its very nature be more difficult to attune to the public will? [Id. at 1189.]

The supporters of the amendment voiced concern over the weakened role of the superintendent. Delegate Douglas, one of the cosponsors of the amendment, opined:

[I]t is difficult for an appointed official to exert state educational leadership when each major decision must be reviewed and approved by his board. I ask you, with the committee proposal to whom is he responsible? He is not responsible to the people. He is not responsible to the governor. He is a creature of the board, and he is responsible to the board. Every time a major decision has to be made on the administrative board, he has to go back to those people who hired him. [Id. at 1216.]

*557Another cosponsor, Delegate Hart, expressed her belief that

[i]n our new constitution the superintendent has been demoted. . . . The superintendent, then, is no longer a strong, independent head directly responsible to the people but he is an executive secretary who has no final voice in educational decisionmaking. He is a subservient agent. His position in the governor’s cabinet is weakened because he no longer speaks for himself as a representative of the people. He may speak only for those whom he represents: the 8 members of the state board. [2 Official Record, Constitutional Convention 1961, p 3147.]

However, the delegates rejected the concerns of Delegates Hart and Douglas by giving the board the power to appoint. The delegates also rejected a similar proposal that would have changed the provision so that the superintendent was appointed by the Governor with the advice and consent of the Board of Education. See 1 Official Record at 1219-1221. In doing so, the delegates reinforced the hierarchical structure presented by the language of art 8, § 3. The superintendent is the executive arm of the Board of Education, and derives authority from the board. The superintendent does not have independent authority derived from the electorate or the Governor.

Third and finally, neither the board nor the superintendent has duties “proscribed by law” as they did in previous constitutions. Instead, the 1963 Constitution recognizes four broad functions of the board: (1) exercising leadership and general supervision over all public education, (2) serving as the general planning and coordinating body for all public education, (3) advising the Legislature regarding the financial requirements in connection with public education, and (4) appointing the superintendent and determining the term of office. The superintendent’s responsi*558bilities are limited to serving as the executive arm of the board and the Department of Education.

Const 1963, art 8, § 3 does provide that the Department of Education “shall have powers and duties provided by law.” The Legislature, and in some circumstances the Governor, is afforded some authority over the Department of Education through this language.7 However, that authority may not be used in a manner that undercuts the constitutionally mandated relationship between the board and superintendent. See OAG, 1965-1966, No 4530, pp 300, 307 (June 1, 1966) (The Legislature is “without power to prescribe the qualifications for the office of superintendent” because that power is specifically given to the board under art 8, §3).

In sum, the language of the 1963 Constitution, and circumstances surrounding its adoption, evidence an intention to establish an hierarchical relationship between the board and the superintendent. The superintendent, as the executive arm of the board, derives authority from the board, and not from an independent source such as the Governor or the Legislature.

IV. APPLICATION OF THESE PRINCIPLES TO THE PROPOSED REORGANIZATION

As explained above, the power of leadership and general supervision vested in the Board of Education necessarily requires that the board also serve as the head of the Department of Education. Executive *559Order 1996-11 effectively undermines the board’s position as the head of the Department of Education. First, it rescinds Executive Order 1965-9, which established the board as the head of the Department of Education. And, second, it transfers all “administrative statutory powers, duties, functions and responsibilities” from the board to the superintendent. Under the order, the only connection the board has to the Department of Education is through the power to appoint the superintendent.

I agree with the dissent in the Court of Appeals that Executive Order 1996-11 “would essentially eliminate the transfer of power voted on by the people when they voted for the 1963 constitution and would render the transfer meaningless.” 230 Mich App 255. Thus, I would find Executive Order 1996-11 to be unconstitutional on its face.

Similarly, the attempted transfer of specific statutory functions from the board to the superintendent within Executive Order 1996-12 is in violation of the hierarchical relationship established between the board and the superintendent in art 8, § 3. The superintendent, as the executive arm of the board, derives authority from the board. The superintendent’s executive duties within the Department of Education are also subject to the oversight and authority of the board as the head of that department. Thus, the Legislature may proscribe functions for the Department of Education to carry out, but it may not specifically vest the authority over those functions in the superintendent. Likewise, the Governor may not shift those legislatively proscribed functions from the board to the superintendent. Rather, it is for the board to determine which legislatively proscribed functions to *560delegate to the superintendent as its executive arm. Therefore, I would also find Executive Order 1996-12 unconstitutional on its face.

Kelly, J., concurred with Cavanagh, J.

No such legislative veto occurred in this case.

MCL 16.405; MSA 3.29(305).

Executive Order 1965-9.

Two other provisions of the constitution contemplate the existence of an elected board heading an executive department. Article 5, § 3 states that “[w]hen a board or commission is at the head of a principal department, unless elected or appointed cts otherwise provided, in this constitution, the members thereof shall be appointed by the governor by and with the advice and consent of the senate.” (Emphasis added.) The conventional comment accompanying this provision further explains that the Governor generally has the power to appoint boards, except “in the case of elected boards and boards and commissions which have authority to name their executive heads.” (Emphasis added.) The Board of Education is the only elected board under the 1963 Constitution. See Viculin v Dep’t of Civil Service, 386 Mich 375, 385-386, n 11; 192 NW2d 449 (1971). Therefore, art 5, § 3 seems to refer to the Board of Education as the head of the Department of Education.

Moreover, art 5, § 9 requires that “[s]ingle executives heading principal departments and the chief executive officers of principal departments headed by boards or commissions shall keep their offices at the seat of government . . . .” (Emphasis added.) This section references exactly the structure contemplated by art 8, § 3 — the department is headed by the Board of Education, and the superintendent is the principal executive officer.

One of the most instructive sources for discerning the circumstances surrounding the adoption of a constitutional provision is the statements of constitutional delegates during the floor debates before passage of the provision. House Speaker, 443 Mich 580-581. While these statements are not decisive with respect to the meaning or intent of the people in ratification, they can provide important background and are particularly helpful when there is “ ‘a recurring thread of explanation binding together the whole of a constitutional concept.’ ” Id. at 581, quoting Regents of the Univ of Michigan v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975).

There was also some discussion that this shift in power also necessarily established the Board of Education as the head of the Department of Education. For example, the following colloquy occurred between Delegates Faxon and Bentley:

Mr. Faxon: . . . The idea will be that the department over which the superintendent will be the executive officer will also be headed by the state board of education? Is that correct, Mr. President and Mr. Bentley?
Mr. Bentley: Mr. President, we have not entered into this discussion at this time. We are merely saying that we believe the word “office” should be substituted for the word “department,” since “department” better specifies what it means than “office.”
Mr. Faxon: Well, the only thing, Mr. President, that I just want to make sure is that the responsibility for the administration of that department, the ultimate responsibility will rest with the state board of education. If that is the intention with the substitution of the word “department,” then I just want to be sure that I understand it, and I’ll go along with this.
Mr. Bentley: Mr. President, we are making no change anywhere, except to make it a department instead of an office. [2 Official Record, Constitutional Convention 1961, pp 2574-2575 (emphasis added).]

Thus, the board, as head of the Department of Education, may have some “duties provided by law.” These duties are not given to the board directly, but are given to the Department of Education. The board then executes the duties as the head of that department.