Detroit Fire Fighters Ass'n v. City of Detroit

Riley, J.

I concur with the lead opinion’s conclusion that plaintiffs lack standing, albeit for different reasons. I believe plaintiffs lack standing because of the budgetary issues they wish to enforce. Plaintiffs claim that the mayor violated the Detroit City Charter by impounding and not appropriating funds for an additional fire squad. They contend that the only means for the mayor to avoid the appropriation 1 is through the amendment procedures set forth in charter §§ 8-2102 and *6428-211.3 By not following the amendment procedures, plaintiffs maintain that the mayor’s actions were illegal and, thus, subject to injunctive or declaratory relief for appropriation of the money.

I am persuaded, however, that plaintiffs do not have standing to enforce or compel express or implied charter provisions directed at preserving a balance of power between the executive and legislative branches. Plaintiffs are not in the zone of interest protected by the charter provisions, i.e., not in the class of persons for whom the charter conveys an especial benefit, and, hence, are not proper parties to seek enforcement of these separation of powers issues. The budgetary constraints or procedures placed on the mayor by charter were directed at benefiting the council and the public, generally, through a check on abuse. They were not intended to benefit the fire fighters, even though the actual appropriation would have benefited them. In other words, the harm intended to be avoided by the charter was not to ensure that a department would be appropriated money, but to ensure that the stern mayoral control afforded by the charter was at least checked by the legislative branch of city government. Plaintiffs do not suffer that type of injury._

*643This conclusion notwithstanding, I reluctantly would reach the substantive issue because it is capable of repetition, yet evading review. In doing so, I would conclude that the mayor’s unilateral impoundment of this appropriation was illegal because it frustrated the intent of the appropriation to create an additional fire squad. The mayor is not required to spend the entire appropriation, but he cannot unilaterally frustrate the underlying purpose of it.

i

Unlike constitutional cases in federal courts, the Michigan standing requirements are based on prudential rather than constitutional concerns. See, generally, House Speaker v State Administrative Bd, 441 Mich 547, 559 and n 20; 495 NW2d 539 (1993). In most cases, the concept of standing is "used to denote the existence of a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy.” Id. at 554. However, mere assurances of vigorous advocacy are not sufficient. The plaintiff must also demonstrate that his substantial interest will be adversely affected in a manner distinct from the citizenry at large, i.e., an actual injury or likely chance of immediate injury different from the public.4 Id. See also House Speaker v Governor, 443 Mich 560, 572; 506 NW2d 190 (1993). If the plaintiff’s interest or interests are no different from those of the public, then we generally preclude suit.

In most cases, this basic public/private injury *644focus is the dispositive inquiry, but that is not always the case. In determining whether a party has standing, it is proper to review the connection between the plaintiff’s status and the claim sought to be adjudicated. See Flast v Cohen, 392 US 83, 102; 88 S Ct 1942; 20 L Ed 2d 947 (1968). Although not always an issue decided in each case,5 both Michigan and federal jurisprudence require a review of whom the statutory or constitutional provisions at issue are designed to protect. If they were merely intended to protect the public, the plaintiff lacks standing to sue in a private cause of action for their violation. In such a case, the plaintiff does not suffer the type of injury the law was designed to protect.

As far back as 1881, Michigan cases have held that when a violation of a public duty is claimed, a private suit is generally precluded, but if the public duty also was intended to benefit private individuals, a private action can be maintained. Taylor v Lake Shore & Michigan Southern R Co, 45 Mich 74, 77; 7 NW 728 (1881). Justice Cooley, writing for the Court, explained that "[t]he nature of the duty and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit.” Id. See also Gardner v Wood, 429 Mich 290; 414 NW2d 706 (1987).

Similarly, in Rayford v Detroit, 132 Mich App *645248; 347 NW2d 210 (1984), the plaintiffs sought reinstatement after a layoff on grounds that the mayor unilaterally amended the budget in violation of the Uniform Budgeting and Accounting Act. MCL 141.421 et seq.; MSA 5.3228(21) et seq. Because the budgetary provisions were not enacted for their especial benefit, the Court concluded that the plaintiffs lacked standing. The Court analyzed the statute at issue in light of the plaintiff’s status as a proper party, concluding that the statute was designed "to promote uniform budgets and to avoid deficit spending, not to afford security of employment.” Id. at 257.

As both Taylor and Rayford illustrate, standing requires an analysis of the statutory or constitutional provisions to determine whether they were enacted for the benefit of the plaintiffs. Both cases conclude that when the statute or constitutional provisions were not intended to benefit or protect the plaintiffs, i.e., for their especial benefit, they lack standing to sue.

Federal courts have adopted similar principles as part of their prudential standing requirements. In some cases, the United States Supreme Court has employed what it deems as the "zone of interest” test and in other cases the "especial benefit” test. See Clarke v Securities Industry Ass’n, 479 US 388, 400-401, n 16; 107 S Ct 750; 93 L Ed 2d 757 (1987). Although both will preclude standing where the plaintiffs were not to be protected by the statutory or constitutional provisions, the stringency of application appears to be the determinative factor.

To illustrate, the Court in Ass’n of Data Processing Service Organizations, Inc v Camp,6 explained the "zone of interest” test in terms of "whether *646the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”7 *Further explaining this test in Clarke, the Court stated that it "is not meant to be especially demanding” or require a finding of direct purpose to benefit the plaintiffs. Id. at 399. Instead, the test "denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id.

On the other hand, in Cort v Ash,8 the Court employed more stringent requirements by asking whether the plaintiffs were "one of the class for whose especial benefit the statute was enacted.” (Emphasis supplied.)9 As intimated in Clarke, su*647pra at 400, n 16, the "zone of interest” test is the less demanding of the tests and usually limited to claims under the Administrative Procedure Act,10 which "generous review provisions” warrant such a test. However, the Clarke Court noted that the threshold test is higher in non-APA cases, ostensibly because there is no statutory or constitutional provisions that confer generous review standards. Id. Hence, the test in non-APA cases is* 11 not whether "their interests were arguably within the zone protected or regulated by” the statute, but whether the plaintiffs "were 'one of the class for whose especial benefit the statute was enacted ....”’ Id. at 401, n 16 (emphasis supplied).

As cases from this Court and the United States Supreme Court illustrate, whether plaintiffs are in the zone of interest protected or in the class of persons intended to be benefited by the statutory or constitutional provisions is a central part of the standing requirements.12 Regardless of the stringency of application, it is clear that invoking the protection of a statute, constitution, or, in this case, a city charter provision, should be done by those intended to be benefited by the provision. A person whose interest was not intended to be protected by the law lacks standing to sue. When *648faced with lack of standing, judicial self-restraint is warranted.

ii

In this case, the charter provisions alleged to be violated are budgetary in nature. They address how and when a budget can be amended and are clearly directed at preserving a balance of power between the executive and legislative branches of city government. Although the public as a whole is clearly a beneficiary of proper operation of these procedures, that is not enough to confer standing. Procedures designed to regulate the coordinate branches of government do not directly affect the rights of private individuals and, consequently, were not intended for any one individual’s especial benefit.

As applied to this case, the budgetary constraints placed on the mayor by charter were directed at benefiting the council and the public generally, through a check on abuse. They were not intended to benefit the fire fighters simply because they may be beneficiaries of a budget appropriation. The injury intended to be avoided was an abuse of power, not the loss of an opportunity for a specific group of persons to receive an appropriation. Like the ubaa provisions at issue in Rayford, supra, the charter provisions regarding budgetary procedures were intended to create a check on power and "to promote uniform budgets and to avoid deficit spending, not to afford” the security of an additional fire squad. Id. at 257.

Simply because the charter fails to designate a specific party to file suit does not make the analysis in Rayford distinguishable. The requirement that a plaintiff assert an interest protected by the statutory or constitutional' provision is well en*649trenched in both Michigan and federal law. Because plaintiffs clearly do not fall within the class intended to be especially benefited by charter provision, I would find that plaintiffs lack standing.

hi

Although I disagree with the analysis of the standing issue in the lead opinion, I reluctantly agree with all my colleagues that it is proper to reach the substantive merits of this appeal. While judicial self-restraint is an important principle, I believe that resolution of these important budgetary issues is necessary, given that swift action is needed when a proper party seeks to compel, if required by charter or statute, action during the budget year. As we know too well, climbing the appellate ladder during the budget year is unlikely and, thus, in all probability, will evade our review. "[W]here a controversy is ' "capable of repetition, yet evading review,” ’ ” it is proper to reach the merits of the claim even though the issue is technically moot. Socialist Workers Party v Secretary of State, 412 Mich 571, 582, n 11; 317 NW2d 1 (1982).

In this case, the issue is whether the mayor can unilaterally impound an appropriation without seeking council approval to amend the budget. For the reasons articulated in the opinions of Justices Weaver and Cavanagh, I would find that the mayor cannot unilaterally impound an appropriation if to do so would frustrate the intent of the appropriation. Clearly, the mayor is not required to spend the entire amount appropriated if he can effect the purpose with less money. See opinion of Cavanagh, J., post at 661. In this case, however, the mayor undoubtedly frustrated the intent to create an additional fire squad. His actions were *650illegal under the charter and the basic principles set forth in Detroit City Council v Mayor of Detroit, 449 Mich 670; 537 NW2d 177 (1995), and Detroit City Council v Stecher, 430 Mich 74, 83; 421 NW2d 544 (1988).

IV

At issue in this case is whether plaintiff fire fighters have standing to assert violations of the budgetary provisions of the Detroit City Charter. Because plaintiffs are not the intended beneficiaries of the charter provisions, I would find that plaintiffs lack standing to sue.

With respect to the substantive issue, I would find the mayor’s actions illegal because they frustrate the intent of the appropriation to create an additional fire squad. If the mayor desired to amend the budget, he was required to seek council approval consistent with the charter provisions. Accordingly, I would affirm the decision of the Court of Appeals on the issue of standing, but for different reasons, and would reverse the decision on the substantive issue.

Brickley, C.J., concurred with Riley, J.

Plaintiffs contend that an appropriation, once adopted, "shall be of full force and effect.” Section 8-208.

1. If during the fiscal year the mayor advises the city council that there are available for appropriation revenues in excess of *642those estimated in the budget, the city council may make supplemental appropriations for the year up to the amount of the excess.

2. To meet a public emergency affecting life, health, property or the public peace, the city council may make emergency appropriations. To the extent that there are no available unappropriated revenues to meet those appropriations, the city council may authorize the issuance of emergency notes as provided by law, this charter or ordinance.

At any time during the fiscal year upon written request by the mayor, the city council may, by resolution, transfer all or part of any unencumbered appropriation balance among the programs, services or activities within an agency or from one agency to another.

To have a personal interest in the outcome of litigation, a person alleging standing can demonstrate either that he has been injured or that he represents a person or a group of persons who have been injured. See Inglis v Public School Employees Retirement Bd, 374 Mich 10, 12-13; 131 NW2d 54 (1964); Kaminskas v Detroit, 68 Mich App 499; 243 NW2d 25 (1976).

When a court reaches the inquiry whether the plaintiff’s injuries are distinct from the public’s, it is generally presumed or decided that the statutory or constitutional provisions implicated were designed to protect the plaintiff’s interests. See, e.g., Muskegon Bldg & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420; 343 NW2d 579 (1983) (in which it went unquestioned that the plaintiff trade union was in the class of persons intended to be benefited by the prevailing wage act. MCL 408.551 et seq.; MSA 17.256[1] et seq.).

397 US 150, 153; 90 S Ct 827; 25 L Ed 2d 184 (1970).

Most case law has considered whether a private cause of action is maintainable on the basis of a statutory provision. However, the United States Supreme Court has also utilized this analysis where a constitutional provision is alleged to be violated. See Boston Stock Exchange v State Tax Comm, 429 US 318, 320-321, n 3; 97 S Ct 599; 50 L Ed 2d 514 (1977) (the plaintiff stock exchanges have standing to assert that a state law tax on out-of-state sales is violative of the Commerce Clause because they are "arguably within the zone of interests” protected by the Commerce Clause).

422 US 66, 78; 95 S Ct 2080; 45 L Ed 2d 26 (1975).

This requirement is the first of a four-part test. Failing any one of the requirements, however, requires a finding of no standing. The four-part test is as follows:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted,” that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? [Id. at 78. Emphasis supplied.]

See 5 use 702.

Some commentators have indicated that the zone of interest test is arguably limited to apa proceedings and then used only selectively by the Supreme Court. See 13 Wright, Miller & Cooper, Federal Practice & Procedure (2d ed), § 3531.7, pp 506-526, and 1995 supp, pp 314-334; Chemerinsky, Federal Jurisdiction, § 2.3, p 87. Others have further indicated that it is a corollary of the third party standing requirements. See Tribe, American Constitutional Law (2d ed), § 3-19, pp 144-145.

Although not binding on Michigan courts, we noted in House Speaker, supra, that "Michigan courts previously have relied upon federal authority when deciding standing questions.” Id. at 560, n 21. Regardless, the principle gleaned from the zone of interest and especial benefit tests is entrenched in Michigan law as a prudential standing requirement. Moreover, its application is implicated by the facts of this case.