Lee v. MacOmb County Board of Commissioners

J. W. Fitzgerald, J.

(dissenting). I respectfully dissent.

Standing to obtain mandamus against a public body or public official requires the plaintiff to establish the violation of a positive legal right, or breach of a legal *337duty, resulting in damage or a specific injury to the plaintiff that is distinct from that suffered by the general public. Inglis v Public School Employees Retirement Bd, 374 Mich 10, 12-13; 131 NW2d 54 (1964); Univ Medical Affiliates, PC v Wayne Co Executive, 142 Mich App 135, 143, n 1; 369 NW2d 277 (1985). In these cases, I conclude that plaintiffs lack standing to obtain mandamus against Macomb County and Wayne County because plaintiffs 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.1 That is, at this stage, plaintiffs 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 any other citizen. Inglis, supra; Killeen v Wayne Co Civil Service Comm, 108 Mich App 14; 310 NW2d 257 (1981). See also Wilson v Cleveland, 157 Mich 510, 511; 122 NW 284 (1909). 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 to obtain a writ of mandamus to compel their respective counties to levy an annual tax on property where there has been no showing that noncompliance with the statute has resulted in the needs of the statute’s intended beneficiaries being unmet. *338Thus, I would conclude that plaintiffs’ complaints for mandamus must be dismissed for lack of standing. MCR 2.116(C)(5).

Even assuming, however, that plaintiffs, as indigent, honorably discharged veterans, have standing to seek mandamus because of their unique status as intended beneficiaries under the act, I would nonetheless exercise judicial self-restraint and deny mandamus on the merits. To obtain mandamus a party must establish a clear legal right to compel the performance of a specific ministerial duty by a public body or public officer. Kosiba v Wayne Co Bd of Auditors, 320 Mich 322, 326; 31 NW2d 68 (1948). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich 440, 444; 72 NW2d 146 (1955).

Here, the Lee and Walker plaintiffs seek to compel defendants’ performance of a duty that is not purely ministerial, but rather involves some measure of discretion. Although § 1 of the act begins by directing that each county board of commissioners “shall annually levy, a tax not exceeding 1/10 of a mill on each dollar . . . upon the taxable property of each township and city, for their respective counties . . . ,” the last sentence of the section provides: “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.” MCL 35.21; MSA 4.1051 (emphasis added). Viewing the act as a whole, I am of the opinion that the Legislature intended to vest limited discretion in county boards of commissioners to determine the amount of tax to *339be levied to effect substantial compliance with the act’s underlying purpose of creating a fund for the benefit of indigent, honorably discharged veterans. This view was expressed as early as 1939 by this state’s Attorney General, whose opinion had been requested regarding whether county boards of commissioners were under a mandatory duty to levy the full amount of tax as provided by the Soldiers’ Relief Fund act:

In an opinion rendered by Attorney General Patrick H. O’Brien on this question on February 17, 1933 (See [OAG, 1933-1934, p 205]), it was held that it is mandatory upon the several boards of county supervisors to levy a tax, not to exceed one-tenth of a mill, for the relief of indigent soldiers, sailors, widows, etc. This opinion further holds that it is not necessary to levy the full one-tenth mill. The amount to be levied rests within the discretion of the board of supervisors as long as the statute has been reasonably and substantially complied with. We concur with this opinion. [OAG, 1939-1940, p 242, 245 (September 28, 1939).]

Given the foregoing, I would conclude that mandamus is inappropriate because plaintiffs are seeking to compel defendants’ exercise of discretion in a particular manner. Teasel v Dep’t of Mental Health, 419 Mich 390, 410; 355 NW2d 75 (1984).

Lastly, I would note that plaintiffs’ complaints sought “compensatory, consequential, and/or special, and/or exemplary, and/or punitive damages, plus interest, for defendants’ failure to comply with the requirements of MCL 35.21 for each and every year defendants have failed to so levy and collect as required by MCL 35.21, plus all attorney fees and costs.” While the plaintiffs have since abandoned their claim for punitive or exemplary damages, they contend on appeal that they are entitled to compensatory damages. Plaintiffs expressly disavow that such *340damages arise out of tort, but rather argue that they arise from the failure of Macomb County and Wayne County to abide by the statutory mandate. As framed by plaintiffs, their request for damages arises from their claim for mandamus. See Wayne Co Sheriff v Wayne Co Bd of Comm’rs, 196 Mich App 498, 510; 494 NW2d 14 (1992). Given that context, I would note that the Revised Judicature Act provides:

Damages and costs may be awarded in an action for mandamus. No damages may be allowed in mandamus against a public officer who, in good faith, acted erroneously. [MCL 600.4431; MSA 27A.4431.]

Even assuming that the Lee and Walker plaintiffs have standing to obtain mandamus, they have not presented any evidence whatsoever to support an allegation that Macomb or Wayne County officials acted in bad faith in failing to comply fully with the statute. See Rodney Lockwood & Co v Southfield, 93 Mich App 206, 215; 286 NW2d 87 (1979). Thus, plaintiffs’ damages claims must likewise fail as a matter of law.

The Walker plaintiffs submitted below the affidavit of class member Paul Eckley, an honorably discharged indigent veteran of the Vietnam War. Eckley averred that he had applied for benefits from the Wayne County Soldiers’ Relief Office in February 1995 and been informed that he was ineligible for relief. Eckley was not denied benefits because of underfunding of the relief fund, and the merits of his denial are not the subject of this appeal.