Marposs Corp. v. City of Troy

Taylor, P.J.

(dissenting). The Technology Park Development Act (tpda), MCL 207.701 et seq.; MSA 7.800 (101) et seq., is not unconstitutional, and the Troy City Council did not exceed the legitimate bounds of its legislative discretion in objecting to plaintiff’s transfer to Auburn Hills.

The majority believes that because MCL *165207.710(2); MSA 7.800(110)(2) gives unfettered power to Troy to object to plaintiffs transfer, the statute is unconstitutional as an improper delegation of legislative powers by the state legislature. The majority completely misses the mark: Troy is itself a legislative body. Just as zoning is a legislative function given by the Legislature to city legislative bodies (city councils) by statute, the power to object to plaintiffs transfer to another city is a legislative function given to Troy’s legislative body by statute. Compare Schwartz v City of Flint, 426 Mich 295, 311, 313; 395 NW2d 678 (1986), where our Supreme Court reiterated the longstanding view that a city council’s enactment of a zoning ordinance is a legislative function, a function that may not be usurped by the judiciary and over which the judiciary has constitutionally limited powers of review.

The majority has veered off the path of intelligible constitutional analysis, propelled by the mistaken notion that the Troy City Council is some type of administrative agency to which too much power has been delegated. But the contrary is true. The municipal entities of this state have, by constitution and statute, been afforded broad grants of legislative authority. Const 1963, art 7, § 29, and, for example, § 3(a) [MCL 117.3(a); MSA 5.2073(a)] of the home rule cities act.1 The Separation of Powers Clause of our state constitution, Const 1963, art 3, § 2, prohibits the executive or judicial branches of government from usurping that legislative prerogative. Schwartz, supra.

The plain language of the tpda gives Troy the absolute right to veto the tax exemption. The lack of standards and guidelines surrounding the exercise of the objection is not a fatal flaw if one *166remembers that the statute is not the delegation of authority to an administrative agency, but, rather, an authorization from the Legislature to local municipal legislative bodies of the power to decide whether and on what grounds to object. The constitution of our state, as referred to above, allows for such and, indeed, across the United States it is by such means that municipalities implement their legislative will. This power then is unexceptionable.

Because the statute passes constitutional muster, the question before us is a very narrow one: was the Troy City Council’s objection arbitrary and unreasonable, Union Twp v Mount Pleasant, 381 Mich 82, 89-90; 158 NW2d 905 (1968). The responsibility of exercising judicial restraint in legislative matters was discussed by Mr. Justice Holmes:

While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. [Otis v Parker, 187 US 606, 608-609; 23 S Ct 168; 47 L Ed 323 (1903).]

I would hold that Troy’s objection to plaintiffs transfer was well within the ambit of the tpda, and therefore was not arbitrary or unreasonable.

The majority seizes upon the notion that this statute was not enacted to revitalize economically depressed areas, and from this fact reasons that because the City of Troy objected to plaintiffs transfer on economic grounds, Troy acted unreasonably. This is wrong on its face because the *167statute itself says that no tax exemption may be granted unless

[c]ompletion of the facility is calculated to and will . . . have the reasonable likelihood to increase economic activity, create employment, retain employment, or prevent the loss of employment in the local governmental unit in which the facility is located. [MCL 207.710(2)(c); MSA 7.800(110)(2)(c).]

It seems to me disingenuous to suggest that the Legislature was not greatly concerned with the vitality of economically depressed areas in light ,of this provision.

In addition, this statute was amended by 1990 PA 151, § 1, effective June 27, 1990, to add a subsection 2(e). This subsection provides that if any employment is caused to be transferred from a local governmental unit with a population of more than 800,000, that local governmental unit may withhold its consent. Because our large metropolitan areas are well known to be distressed economically, this amendment is strong evidence that enhancing the vitality of economically endangered areas was a central concern of the Legislature in passing the tpda.

Obviously, then, it cannot be unreasonable under the majority’s own analysis for Troy to object for that reason.

1 feel it should also be pointed out that, notwithstanding the majority’s invocation of the legislative history,2 it should be understood that it surpasses unlikely, in a Legislature apportioned on a *168one person-one vote basis — thus giving the majority of votes in both chambers to urban areas with troubled commercial environments — that the legislators who represent those areas would have acquiesced in a statute that facilitates in any way the economically aggressive suburbs of this state pirating the large cities’ remaining commercial tax base. What is more credible and certainly more probable is that the urban legislative majority would only countenance this concept if there could be an untrammeled right to object by their cities and the measure was accordingly promoted as targeting only out-of-state high-tech businesses. That the right of objection was extended only to Michigan municipalities reinforces this point. In any case, a resort to intent is unneeded because the statute is clear on its face and thus should be *169interpreted as giving an unconditional right to object. Hiltz v Phil’s Quality Market, 417 Mich 335; 337 NW2d 237 (1983).

I would uphold the constitutionality of the statute and affirm the actions of the Troy City Council, and so would reverse the trial court’s order granting summary disposition to plaintiff with regard to issues n and iii.

MCL 117.1 et seq.; MSA 5.2071 et seq.

Legislative histories are always suspicious. As Mr. Justice Scalia said, in reference to the United States Congress:

My general attitude towards [legislative history] can be summed up ... by saying that I regard it as the greatest surviving legal fiction. If you can believe that a committee report (to take the most respected form of legislative history) in *168fact expresses what all the Members of Congress (or at least a majority of them) "intended” on the obscure issues that it addresses; if you can believe that a majority of them even read the committee report; indeed, if you can believe that a majority of them was even aware of the existence of the obscure issue; then you would have had no trouble, several hundred years ago, in permitting all tort actions to be squeezed into the writ of assumpsit by the patently phony allegation that the defendant had undertaken (assumpsit) to be careful. Even beyond the unreliability of almost all legislative history (most of which is now cooked-up legislative history) as an indication of intent, it seems to me that asking what the legislators intended rather than what they enacted is quite the wrong question. [Address by Justice Antonin Scalia before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986).]

Compounding the problem with the Michigan legislative histories is that, in this state, unlike the federal legislature, there is no verbatim journal of the proceedings of either house of the Legislature or of its committees. Further, unlike Congress, the Michigan House of Representatives or Senate does not vote on an acceptance of the legislative history. The creation of legislative histories are therefore free play for legislative staffers and special-interest pleaders. Their hope may well be to fill these empty vessels with potions on the chance that someday some credulous court, unaware of its dubious authenticity, may drink deeply.