Rental Property Owners Ass'n v. City of Grand Rapids

Mallett, C.J.

(dissenting). Although I agree with Justice Cavanagh that the decision of the Court of *281Appeals should be affirmed, I cannot agree with his preemption analysis for the reasons stated in part n(c) of the majority opinion. I also agree with the majority’s assertion that the separation of powers doctrine, contained in Const 1963, art 3, § 2, does not apply to local governments.

I believe that the decision of the Court of Appeals should be affirmed, however, because § 9.704(3) of the Grand Rapids padlock ordinance vests the authority to adjudicate violations of the ordinance in the city commission, not the courts. It states:

The City Commission, sitting as an administrative body . . . and acting in a quasi-judicial capacity, shall make a determination as to whether a public nuisance exists under the standards established by this Chapter.

This portion of the padlock ordinance attempts to give the city commission authority beyond what is permitted by Const 1963, art 6, § 1, the home rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq.; or the Due Process Clauses, Const 1963, art 1, § 17; US Const, Am XIV.

An axiom of municipal law is that municipalities are agents of the state, created for the administration of local government. Streat v Vermilya, 268 Mich 1, 6; 255 NW 604 (1934). Municipalities have no inherent power; rather, they may only exercise powers that the state confers upon them. Bivens v Grand Rapids, 443 Mich 391, 397; 505 NW2d 239 (1993). While the home rule act grants broad authority to municipalities, this authority is not unlimited.

Art 6, § 1 limits the exercise of judicial power to the courts. It states:

*282The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Emphasis added.]

Thus, because cities only have the powers that the state grants them, and because the state constitution vests the judicial power exclusively in the courts, municipalities may not exercise judicial power. Professor LeDuc has discussed this concept in relation to legislatively created administrative agencies:

[J]ust as the legislature cannot give away its authority to legislate, it cannot convey true judicial power on administrative agencies. Thus, the legislature can confer only those powers which are administrative in nature and cannot give the powers of a true court to an agency. In addition, an agency cannot rely upon any concept of inherent authority to give itself judicial power. [LeDuc, Michigan Administrative Law, § 2.22, p 26.]

In this case, the City of Grand Rapids has attempted to characterize § 9.704(3) as an exercise of “quasi-judicial” powers. It is true that cities, like other administrative agencies, very often exercise quasi-judicial powers. See, e.g., Prawdzik v Grand Rapids, 313 Mich 376, 390-391; 21 NW2d 168 (1946) (concerning the revocation of a restaurant’s license); In re Payne, 444 Mich 679, 708, 720; 514 NW2d 121 (1994) (concerning the termination of a civil service employee); zoning enabling act, MCL 125.585; MSA 5.2935 (authorizing a city commission to sit as a zoning board of appeals). It is also true that municipalities may abate certain kinds of nuisances administra*283tively, without prior approval of a court. See People v McKendrick, 188 Mich App 128, 137-140; 468 NW2d 903 (1991) (concerning the cutting of weeds).

Because of the nature of the interest at stake in this case, however, the padlock ordinance cannot properly be characterized as conferring only “quasi-judicial” powers on the city commission. This is not a case about cutting weeds, revoking a business’ license, or rezoning a parcel of land. Rather, this ordinance has the potential to deprive individuals of access to their homes for up to a year. In this way, the ordinance affects one of the most fundamental rights in Anglo-American jurisprudence — the right to live in one’s home. If an individual is going to be deprived of this right, traditional notions of due process require a proper adjudication before an impartial tribunal that is designed to protect the rights of the individual. That is, it requires an exercise of judicial power. A city commission is simply not equipped to serve as a substitute for a court.

I wish to make clear that I agree with the majority that cities have broad authority under the home rule cities act and that nuisance abatement is a valid goal of municipal government. In fact, I see no reason why a municipality cannot establish a padlock ordinance that is similar to the state nuisance abatement statute. MCL 600.3801; MSA 27A.3801. What a municipality cannot do, however, is usurp the role of the judiciary in adjudicating violations of these ordinances.

Clearly, the City of Grand Rapids, like many other Michigan cities, faces serious problems because of drugs and prostitution, and, as Justice Stevens stated in Young v American Mini Theatres, Inc, 427 US 50, 71; 96 S Ct 2440; 49 L Ed 2d 310 (1976), cities “must *284be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” In our rush to combat the serious problems caused by drugs and prostitution, however, we must be careful not to trample on the fabric of the Michigan or United States Constitution. I fear that the Grands Rapids padlock ordinance does just that.