Detroit Fire Fighters Ass'n v. City of Detroit

Marilyn Kelly, J.

(dissenting). The majority concludes that plaintiffs lack standing to bring this *135action and that the mayor was not required to spend the money appropriated for hiring additional fire fighters. I disagree.

i

The majority finds that plaintiffs lack standing, because their damages are no different from those of the citizenry at large. See House Speaker v State Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993), citing Alexander v Norton Shores, 106 Mich App 287, 288; 307 NW2d 476 (1981). They conclude that the fire fighters’ increased chance of physical injury is not unlike the general public’s increased chance of physical injury due to a lack of fire fighters.

Admittedly, both fire fighters and the general public are at greater risk of physical injury when there is an insufficient number of fire fighters. However, fire fighters are detrimentally affected in a manner different from the citizenry at large. See House Speaker, supra. The increased risk of injury to fire fighters is different in degree and in kind from that of the general public. A fire fighter is much more likely to sustain injury due to the insufficiency of fire fighters than is a member of the general public. The more fires one encounters, the greater the likelihood of injury. Also, a fire fighter may be more susceptible to injury due to errors caused by sleep deprivation.

Aside from the increased risk of physical injury, fire fighters suffer from an increased risk of serious emotional distress. An insufficiency of fire fighters harms the morale and efficiency of all existing fire fighters. Unlike the average citizen, fire fighters live every workday with the real possibility that, due to a lack of personnel, they may be seriously harmed.

*136The majority finds Rayford controlling.1 In Ray-ford, two police officers and their union brought suit claiming the officers had been illegally laid off to avoid a budget deficit. We concluded that the plaintiffs did not have standing under the Uniform Budgeting and Accounting Act (ubaa). The statute expressly provided that only the attorney general or prosecuting attorney could pursue a civil action for remedy of a breach of the act. MCL 141.440; MSA 5.3228(40). We stated that the purpose of the ubaa is to promote uniform budgets and to avoid deficit spending, not to afford security of employment. Id., 257.

I find Rayford distinguishable from this case. Here, plaintiffs filed suit for violations of the Detroit City Charter, not the ubaa. Unlike the plaintiffs in Rayford, the plaintiffs in this case do not base standing on their status as city employees or taxpayers. Instead, they argue that they risk injury due to a lack of fire fighters. In addition, they challenge the mayor’s unilateral actions as being outside his powers under the Detroit City Charter. They assert also that the mayor’s actions violated the separation of powers clause of the Michigan constitution. Const 1963, art 3, § 2. See House Speaker v Governor, 195 Mich App 376; 491 NW2d 832 (1992), lv gtd 441 Mich 909 (1993). Rayford does not control the standing issue in this case. Cf. Muskegon Bldg & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420, 423-424; 343 NW2d 579 (1983).

Muskegon is the controlling case law. In Muskegon, the plaintiff was a labor organization of craft and trade unions representing individual construction workers. Plaintiff filed suit alleging that the defendant failed to follow the prevailing wage act. *137MCL 408.551 et seq.; MSA 17.256(1) et seq. The defendant solicited bid specifications for a particular project and failed to include provisions for the payment of wages and fringe benefits at the prevailing rates. The defendant argued that the plaintiff lacked standing, because individual members of the trade associations had no right to employment under the act.

In Muskegon, the plaintiff alleged irreparable harm to its members if the defendant could receive bids or award contracts to bidders not required to pay prevailing wages and benefits. A number of plaintiffs members were unemployed; they could not get work on the project in question if the prevailing wage act were not complied with. Even if prevailing wages and benefits had been offered, none of the individual members of the organization represented by the plaintiff would have had a right to a job. Id., 426. Plaintiff maintained its members would be hired for the project if the act were complied with. The Court recognized that, although defendant could contest plaintiffs allegations, the contest was relevant to whether plaintiff was entitled to relief, not to its standing to bring suit. Id.

This Court in Muskegon found standing based on the plaintiffs status as an association of trade organizations established to enhance the political and economic power of its members. The association was formed to protect the rights and interests of its members. We recognized that the plaintiff had a direct interest in compliance with the prevailing wage act; the existence of the association was dependent upon the existence and health of its members.

Similar to the plaintiff labor organization in Muskegon, plaintiffs here are the union and union officers authorized to represent fire fighters em*138ployed by the City of Detroit. They have a direct interest in the expenditure of the budget appropriation; the union was formed to protect the interests of its members. John Devine, plaintiffs’ fire service expert, stated by deposition attached to plaintiffs’ motion that an increase in fire fighters would reduce the risk of injuries to all other fire fighters. The deposition testimony takes plaintiffs’ allegations of future injury out of the realm of speculation. Cf. Saginaw Fire Fighters Ass’n v Civil Service Comm, 71 Mich App 240; 247 NW2d 365 (1976).

The personal interest and stake of the union members are sufficiently adverse and real. See Trout Unlimited v City of White Cloud, 195 Mich App 343; 489 NW2d 188 (1992); Bowie v Arder, 441 Mich 23; 490 NW2d 568 (1992). The members are harmed in a manner different from the citizenry at large. House Speaker, supra. Therefore, I would find that plaintiffs have standing to advocate association members’ interests in this action. See Trout Unlimited, supra. I would affirm the trial court’s ruling that plaintiffs have standing.

ii

The majority agrees with the trial court that the mayor was not required to spend the money appropriated for hiring additional fire fighters. I disagree.

Plaintiffs argue that the trial court erred in determining that the executive branch of the Detroit city government may refuse to expend monies appropriated for a particular use. They argue that the city charter is a grant of power and, unless authorization to perform a particular act was written into the charter, it does not exist. The city charter provides only two methods of altering the *139budget once adopted, they argue, and neither was invoked here. Detroit Charter, § 8-210.

Neither the Detroit City Charter nor the ubaa gives the mayor the authority to refuse to expend appropriated funds. Generally, a mayor has only that authority which is expressly or impliedly conferred by the charter or the applicable law, or by the governing legislative body acting within the law. 3 McQuillin, Municipal Corporations (3d ed), § 12.43, p 249. Nonetheless, defendants argue that a budgetary shortfall necessitated the refusal to expend the amounts appropriated.

The ubaa and the Detroit City Charter prohibit deficit spending. Both provide specific procedures to ensure that shortfalls do not occur. See Detroit City Council v Stecher, 430 Mich 74, 83-85; 421 NW2d 544 (1988), Detroit Charter, §8-211, and MCL 141.437; MSA 5.3228(37). Defendants have not shown that the procedures were followed.

The majority finds that the facts here are distinguishable from those in Stecher, because the appropriation in question was neither altered nor was it the subject of a transfer. As a result, they reason, the formal procedures set forth in the ubaa and the city charter do not come into play. The majority concludes that an appropriation must be altered or the subject of a transfer before the formal procedures of the ubaa or the city charter apply. I find no support in Stecher for that proposition.

The ubaa’s and city charter’s procedures address the roles of both the city council and the mayor in the event a budget deficit is discovered. Their existence precludes a finding that the mayor, acting alone, has the authority to avoid a budgetary shortfall. See Feld v Robert & Charles Beauty Salon, 435 Mich 352, 362; 459 NW2d 279 (1990).

The majority’s holding that the mayor can act *140on his own in refusing to expend appropriated funds is unsupported. I conclude, to the contrary, that the mayor must implement a lawful appropriation of the city council, unless he invokes a legal remedy available to him. Therefore, I would reverse the grant of summary disposition to defendants and affirm the ruling that plaintiffs have standing.

Rayford v Detroit, 132 Mich App 248, 257; 347 NW2d 210 (1984).