Detroit Fire Fighters Ass'n v. City of Detroit

Cavanagh, J.

(dissenting in part and concurring in part). I concur with Justice Mallett with respect to the standing issue and agree that the plaintiffs do have standing. However, I disagree with him with respect to the impoundment of funds issue. Because this is an issue that may recur, I agree that we should address this issue. Therefore, I dissent on the standing issue. I concur with the lead opinion that the mayor’s actions here violated the separation of powers doctrine. I write separately to offer a clarification of the boundaries of executive discretion.

*651I

In House Speaker v Governor, 443 Mich 560, 572; 506 NW2d 190 (1993), this Court restated the general rule of standing:

The concept of standing represents a party’s interest in the outcome of litigation that ensures sincere and vigorous advocacy. However, a commitment to vigorous advocacy alone is not enough. Rather, "[standing requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large.” [Citation omitted.]

Additionally, the United States Supreme Court reviewed federal standing principles in Lujan Defenders of Wildlife, 504 US 555, 560-561; 112 Ct 2130; 119 L Ed 2d 351 (1992). The Court stated: co ^

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized,. . . and (b) "actual or imminent, not 'conjectural’ or 'hypothetical,’ ” .... Second, there must be a causal connection between the injury and the conduct complained of —the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” . . . Third, it must be "likely,” as opposed to merely "speculative,” that the injury will be "redressed by a favorable decision.” [Citations omitted.]

Generally, an organization has standing if its "members themselves have a sufficient stake or have sufficiently adverse and real interests in the matter being litigated.” Trout Unlimited, Mus*652kegon-White River Chapter v City of White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992) (citations omitted).

Here, the injury in fact of being burned in a fire is concrete and imminent because fire fighters respond to fires every day. The risk of this injury would decrease by the addition of a specialized squad because the fire fighters who respond to a dangerous fire would have additional fire fighters available more quickly. Therefore, causation has been established. Additionally, a court’s directive to the mayor to spend the appropriated funds would redress the persisting degree of risk of harm. The degree of this risk is substantially greater for fire fighters than it is for the general public. Therefore, the plaintiffs have established standing; as individual members of the association they have met the threshold summarized in Lujan.

ii

The substantive issue in this case involves the effect of the separation of powers doctrine on the implementation of a city’s budget. A city receives its self-governing authority through the home rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq. In this case, that authority is contained in the Detroit City Charter. A city is also subject to the Uniform Budgeting and Accounting Act (ubaa). MCL 141.421 et seq.; MSA 5.3228(21) et seq. We previously considered the interplay between the ubaa and the Detroit City Charter in Detroit City Council v Stecher, 430 Mich 74; 421 NW2d 544 (1988).1 *653There, we were concerned with the respective roles of the mayor and of the council in making amendments to a budget during a fiscal year. Here, we are concerned with the scope of the mayor’s discretionary authority to implement or not to implement appropriations contained within an adopted budget.

The Detroit City Charter provides the initial budget adoption process2 and also the procedure *654for making subsequent amendments to an adopted budget. During the initial adoption process, the mayor submits to the council a proposal for the next fiscal year’s annual budget, which the council may accept either as is or with the council’s own amendments. Detroit Charter, § 8-207. If the mayor disagrees with the council’s amendments, the mayor is required to respond in writing to the council, explaining the reasons for disagreement. Id., § 8-208.3 Subsequently, if at least two-thirds of the council agree, the council can override the mayor’s veto, and any amendment that is adopted pursuant to the override mechanism becomes part of the budget with "full force and effect.” Id. Once adopted, "the budget shall constitute . . . [appropriations of the amounts specified therein from the funds indicated . . . .” Id., § 8-209. There are two sections that expressly provide for subsequent alterations to an adopted budget.4

*655Ill

In this case, the council overrode Mayor Young’s veto of a $750,000 appropriation to add a seventh fire squad to the city’s fire department. Subsequently, Mayor Young refused to spend the appropriated funds. There is no express executive branch power to impound funds contained in either the Detroit City Charter or in the ubaa. Therefore, the issue is whether a mayor has the inherent discretion or authority not to implement an appropriation. The majority of the Court of Appeals held that a mayor does have such authority. It reasoned:

An appropriation is not a mandate to spend. Under the ubaa, "appropriation” is defined as an authorization, not a requirement, to incur obligations and to expend public funds. MCL 141.422a(3); MSA 5.3228(22a)(3). Under both the ubaa and the city charter, the mayor has a duty to operate the city within a balanced budget, and must control spending so as to avoid a budget deficit. Were plaintiffs permitted to successfully challenge the mayor’s discretionary decision to simply not spend, the mayor would be unable to prevent the deficit spending that is proscribed by law, a law that he is charged with upholding.
We note specifically that the facts of this case *656are distinguishable from those of Stecher, supra, because the appropriation in question was neither altered nor was it the subject of a transfer. Therefore, the formal procedures set forth in the ubaa and the city charter do not come into play. Stecher, supra, p 77. [199 Mich App 129, 133-134; 501 NW2d 202 (1993).]

Before us now, the city again argues that an appropriation is merely a fiscal planning device that does not create any mandate; instead, it merely designates the amount that a public official may spend, not what it must spend.5 The city adds *657that it is legally obligated to maintain a balanced budget.

In contrast, the plaintiffs rely on Stecher to argue that, even in the face of a budget deficit, the mayor has the responsibility to submit proposals to the council, and that it is the council, not the mayor, that has the ultimate authority for maintaining a balanced budget through amendments of the budget. The city admits that genuine amendments of the budget and transfers of funds between appropriations must be approved by the city council. It contends, however, that there was no such reappropriation or transfer of funds here. Instead, the city insists that Mayor Young, recognizing that revenues were going to fall short of prior predictions, simply chose not to spend the money. The city believes that this power not to spend is within the inherent executive power that is conferred on a mayor by the Detroit City Charter. It points to § 5-102, which provides:

Except as otherwise provided by law or this Charter, executive and administrative authority for the implementation of programs, services and activities of city government is vested exclusively in the executive branch.

The city believes that the executive and administrative authority to implement the programs contained in the budget includes the authority not to implement those programs in order to control expenditures. Therefore, the city concludes that *658Mayor Young did not violate the separation of powers doctrine embodied in the ubaa and in the Detroit City Charter.

iv

I do not believe that anyone can seriously dispute that an appropriation is not a mandate to the executive branch to spend the full appropriation. Additionally, the executive branch certainly has inherent discretion, if not a duty, to seek economic savings. However, this executive discretion may not extend so far as to usurp legislative authority. Adopting a budget is a legislative function. In contrast, proposing and implementing a budget are executive functions. Everyone here recognizes that the budget is no more than a financial plan, which may be adjusted throughout the fiscal year in order to adapt to changing financial conditions. However, I believe that the city’s argument that what occurred here was merely a discretionary decision not to spend is too simplistic because the failure to implement the seventh fire squad, in effect, eliminated the appropriation entirely.

The question becomes, how do we strike a balance between the executive branch’s discretionary power to operate within the financial plan and the legislative branch’s intent and power to adopt the budget and to set fiscal policy.6 The ubaa provides:

*659"Appropriation” means an authorization granted by a legislative body to incur obligations and to expend public funds for a stated purpose. [MCL 141.422a(3); MSA 5.3228(22a)(3). Emphasis added.]

I think our solution lies with the "stated purpose” objective of an appropriation. If the executive branch has substantially accomplished the stated purpose, then it has legally operated within executive discretionary authority when it economically saved money by not spending the full amount. In other words, the mayor secured a "better deal,” or the project did not cost as much as expected. However, if the effect of the "not spending” frustrated or thwarted the stated purpose, then the executive branch has not executed or implemented a legislative authorization. Instead, it has unilaterally adopted its own budget by deviating from, if not ignoring, the council’s budget.7 *660This it cannot do.8 As the court stated in Oneida Co v Berle, 49 NY2d 515, 524; 427 NYS2d 407; 404 NE2d 133 (1980):

[T]he executive possesses no express or inherent power — based upon its view of sound fiscal policy— to impound funds which have been appropriated by the Legislature.

Instead, the mayor must comply with our decision in Detroit City Council v Mayor of Detroit, 449 Mich 670; 537 NW2d 177 (1995). A de facto deviation from the budget, which is, in effect, a postadoption amendment of the budget, requires joint action of the mayor and of the city council under UBAA, § 17,9 and under Detroit Charter §§ 8-210, 8-211.

*661V

In conclusion, I would hold that Mayor Young exceeded his executive discretionary power when he refused to spend any of the appropriated funds. He was not seeking a more economical means of adding a seventh fire squad, but rather, he was refusing to add the squad altogether. As such, he completely thwarted the stated purpose of the appropriation and violated the separation of powers doctrine.

The issue then turns to remedy. Here, the budget year has long since passed. Even assuming arguendo that we could make such an order, from a purely practical viewpoint, we would be unable to order the defendants to spend the appropriated funds so many years after the fiscal year in which this dispute arose. However, in future cases, a trial court, faced with this issue during the fiscal year, should have the authority to issue a writ of mandamus to the mayor to do one of two things: implement the program or seek a formal amendment of the budget through joint action with the council. If the council believes that continued implementation of the program would be unwise, it, along with the mayor, can freely amend the appropriation. If, on the other hand, the council continues to support the appropriated program, the mayor has no authority to thwart the council’s stated purpose of the appropriation.

For the reasons stated above, I would reverse the decision of the Court of Appeals with respect to both issues.

Boyle, J., concurred with Cavanagh, J.

In Stecher, we concluded:

We hold that when, during a fiscal year, it becomes apparent that the budget of the City of Detroit will not balance, the mayor has the responsibility and the power to make recommendations to the city council for appropriations transfers in order *653to achieve a balanced budget to comply with the provisions of the ubaa. The city council may accept or reject recommendations submitted by the mayor to effect a balanced budget, but the council may not unilaterally amend the mayor’s proposals. We further hold that the provisions of the Detroit Charter do not conflict with those of the Uniform Budgeting and Accounting Act: Therefore they may be read together to provide for an orderly process of budget amendment in the face of an impending budget deficit. Accordingly, the city council may not invoke the provisions of the ubaa to acquire authority prohibited to it by the Detroit Charter. [Id. at 90. Emphasis added.]

The charter provides in part:

Sec. 8-203. Annual budget.
On or before April 1 each year, the mayor shall submit to the city council a proposed annual budget for the next fiscal year. Proposed capital appropriations shall be set forth in a separate section of the annual budget.
Sec. 8-204. The budget.
1. The budget shall constitute a complete financial plan for the city for the next fiscal year.
3. The total of proposed expenditures shall not exceed the total of estimated revenues.
Sec. 8-205. Form of appropriation.
All appropriations to each agency shall be made in lump sums to the agency’s specific programs, services or activities or to additional classes as the mayor may recommend in the proposed budget, subject to amendment by deletion, addition or substitution by the city council.
Sec. 8-206. Public hearing.
A public hearing in the manner provided by law or ordinance shall be held on the proposed budget before adoption.
*654Sec. 8-207. Amendment before adoption.
After the public hearing, the city council may adopt the budget with or without amendment.

Sec. 8-208. Budget adoption.

Consideration of the budget shall be completed by the city council not later than May 15. If the mayor disapproves amendments made by the city council, the mayor shall within 7 days, submit to the city council in writing the reasons for the disapproval.
The city council shall proceed to reconsider any budget item so disapproved. If, after reconsideration a Vs majority of the city council members serving agree to sustain any of the city council’s amendments to the budget, those amendments so sustained shall be of full force and effect. The city council’s reconsideration of the budget must be concluded within 3 business days after receipt of the mayor’s disapproval. [Emphasis added.]

Sec. 8-210. Amendments after adoption.

1. If during the fiscal year the mayor advises the city council that there are available for appropriation revenues in excess of those estimated in the budget, the city council may make supplemental appropriations for the year up to the amount of the excess.
*6552. 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.
Sec. 8-211. Transfer of appropriations.
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.

The city also maintains that the charter calls for lump-sum budgeting, Detroit Charter, § 8-205, and argues that this form of appropriation was intended to give the executive branch maximum control and responsibility for effective management. The plaintiffs correctly counter that § 8-205 also allows for specifically earmarked appropriations. The city further contends that the final appropriation in the budget was not specifically earmarked for a seventh squad of fire fighters. The city asserts that after the council’s override, the council reorganized the specific appropriations for the fire department into lump-sum appropriations. However, it admits that the lump sums allotted to separate fire funds increased by a total amount corresponding to the override appropriation. Nevertheless, the city argues that after this reorganization there was no earmarked portion for the new fire squad. However, in a hearing for summary disposition before the trial court, the city’s attorney stated:

What happened here is an appropriation for a certain amount was lumped into a particular cost center and I think that’s how they got the affidavit attached to the document . . ., which sets forth in specific fashion exactly what happened to this money, how it first came into existence by Council action and ultimately ended up in what’s called the Red Book Budget for 1989-90.
. . . What you’ve got is you’ve got a line item that was created by City Council amendment of the Mayor’s original budget proposal. That line item indicated that a certain number of positions were to be added to the fire fighting division operations for the addition of a squad.
Ultimately, as that item goes through the process it becomes lumped into the total cost center which in this case ended up being cost center 0718 or appropriation 718 for the cost center of the fire fighting division operations, so it’s lumped in there. It exists. It’s in there. I don’t think there’s any doubt about that. [Emphasis added.]

*657Because counsel admitted that the specific appropriation still existed, even though "lumped” in with the general appropriation, the city’s lump-sum characterization is inapposite because the council’s stated purpose for the appropriation was clear. However, even lump-sum appropriations may place limitations on an executive branch’s ability not to spend. Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v Donovan, 241 US App DC 122, 128; 746 F2d 855 (1984).

The plaintiffs quote Community Action Programs Executive Directors Ass’n of New Jersey v Ash, 365 F Supp 1355, 1360-1361 (D NJ, 1973):

The Executive Branch has no authority, even for motives such as the control of inflation, to decide for itself whether to obey a law after the President has signed a bill into law, or after Congress has overridden a Presidential veto.
[Ojnce Congress has appropriated funds for a specific pro*659gram, the Executive Branch has a duty to spend them. It has no authority under the Constitution to refuse to spend those funds, and performs only a ministerial function. [Citations omitted.]

See Rios v Symington, 172 Ariz 3, 12; 833 P2d 20 (1992), which discussed general separation of powers principles. The court stated:

Thus, the Governor must manage the government in a fiscally responsible fashion and is not required, under all circumstances, to dispose of all appropriated money before the end of the fiscal year. If the legislative purpose of the appropriation is carried out and funds remain, the Governor may revert them. Budgets and appropriations bills are, in part, documents of estimation both on the income and expenditure side. Thus, some reversions are common and some are occasionally anticipated. However, we are of the view that our Constitution prohibits the Governor from substituting his judgment for that of the Legislature except through the use of the veto power. [Emphasis added.]

See also West Virginia ex rel Steele v Kopp, 172 W Va 329, 336-338; 305 SE2d 285 (1983) (a governor may not refuse to appropriate money that, in effect, eliminates a department that the legislature has expressly created).

The discretionary power of the executive cannot extend so far as to allow the executive to ignore the legislative branch’s intent, otherwise there would remain no limitation on executive power. Local 2677, American Federation of Government Employees v Phillips, 358 F Supp 60, 77-78 (D DC, 1973).

"[WJhatever inherent authority to administer the executive budget may exist in the office of the chief executive, such authority may not normally be invoked to contradict major legislative budgeting determinations.” Colorado General Assembly v Lamm, 700 P2d 508, 521 (Colo, 1985).

Section 17 provides, in part:

Except as otherwise provided in section 19, a deviation from the original general appropriations act shall not be made without amending the general appropriations act. The legislative body of the local unit shall amend the general appropriations act as soon as it becomes apparent that a deviation from the original general appropriations act is necessary and the amount of the deviation can be determined. ...If, during a fiscal year, it appears to the chief administrative officer, ... or to the legislative body that the actual and probable revenues from taxes and other sources in a fund are less than the estimated revenues, . . . the chief administrative officer or ffscal officer shall present to the legislative body recommendations which, if adopted, would prevent expenditures from exceeding available revenues for that current ffscal year. . . . The recommendations shall recognize the requirements of state law and the provisions of collective bargaining agreements. [MCL 141.437; MSA 5.3228(37). Emphasis added.]