Detroit Fire Fighters Ass'n v. City of Detroit

Mallett, J.

(concurring in the result only). Al*662though we agree with the result that the lead opinion reached, we disagree on the issue of standing. We believe that the plaintiffs have an interest in the expenditure of appropriated funds sufficiently different than the general public that would confer standing on them. However, we do not believe that the mayor can be compelled by statute or by city charter to expend the appropriated funds. Thus, plaintiffs are not entitled to relief.

i

The lead opinion would hold that the plaintiffs’ membership in the association does not set them aside or make their interest in this suit any different from that of the general public or any other city employee. Ante at 634 and 637-638. We believe that it does and would hold that plaintiffs’ membership in the association and the nature of the association members’ occupations makes their interest sufficiently different than that of the general public.

"The concept of standing represents a party’s interest in the outcome of litigation that ensures sincere and vigorous advocacy.” House Speaker v Governor, 443 Mich 560, 572; 506 NW2d 190 (1993). However, evidence that a party will engage in full and vigorous advocacy alone is insufficient. House Speaker v State Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993). Standing requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large. Id. at 554. It is necessary and appropriate to examine the substantive issue and determine whether there is a logical nexus between the plaintiffs’ status and the substantive claim. Flast v Cohen, 392 US 83; *66388 S Ct 1942; 20 L Ed 2d 947 (1968). The question in the present case is whether the plaintiff can demonstrate any special right, injury, or zone of interest that deserves the protections of the law. None of these inquiries are answered by the resolution of the case on the merits.1

The position of the lead opinion also would conflict with earlier decisions regarding standing generally and, more specifically, regarding the standing of labor organizations. These plaintiffs have a sufficient interest in the outcome of litigation and indeed will be detrimentally affected in a manner different from the citizenry at large.

The lead opinion relies heavily on Saginaw Fire Fighters Ass’n Local No 422 v Police & Fire Dep’t Civil Service Comm, 71 Mich App 240; 247 NW2d 365 (1976).2 In that case, the trial court granted the fire fighters association summary disposition and granted an injunction against the defendant to refrain from testing or recruiting nonresident applicants for positions within the fire department. The relevant statute3 required that the commission hire on the basis of several factors including one-year residency. The residency requirement could be waived if there were not enough qualified residents to meet the open positions.___

*664The Court of Appeals held that none of the current union members had been injured by the requirements of the residency regulation. Instead, the plaintiffs were asserting the rights of future applicants who may be denied membership because of the waiver. Id. at 244. In the present case, the plaintiffs are not asserting the rights of future members. Rather, by seeking the additional manpower, plaintiffs are asserting their own right to a safer work environment. Moreover, the United States Supreme Court has recently held that an association of contractors is not required to show that one of its members would have prevailed in the substantive portion of its claim in order to have standing. See Northeastern Florida Contractors v Jacksonville, 508 US 656, —; 113 S Ct 2297, 2302-2303; 124 L Ed 2d 586 (1993).

We also find that Rayford v Detroit, 132 Mich App 248; 347 NW2d 210 (1984), is not determinative of the standing issue in the present case. (See opinion of Riley, J., concurring in part and dissenting in part.) In Rayford, the plaintiffs brought suit pursuant to the ubaa, in an attempt to require the city to reinstate laid-off police officers. The Court of Appeals determined that a necessary inquiry in standing cases is whether the plaintiffs are "within the class of persons intended to be benefitted by the legislation.” Id. at 256. The Court went on to hold that because the ubaa’s purpose is to promote uniform budgets and avoid deficit spending, "[a]ny action under [the] statute must be initiated by the Attorney General . . . .” Id. at 257. However, we find that such a test does not make sense in this case. First, it appears that courts considering the standing issue take one of two paths on an ad hoc basis, that is, whether the plaintiffs are' affected differently than the general public or whether the plaintiffs are within the *665class of persons intended to be benefited by the legislation. While it may be appropriate to use the latter test when suit is brought under the ubaa, it is inappropriate when suit is brought under the city charter because that document does not provide for enforcement by a public law enforcement officer. Therefore, we find Rayford to be inapplicable to the circumstances presented here.

This Court denied leave to appeal in Muskegon Bldg & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420; 343 NW2d 579 (1983), a case that is more analogous to the present case than is Saginaw Fire Fighters or Rayford. In Muskegon Trades, the Court of Appeals conferred standing on a labor organization that was seeking an injunction to enjoin the defendant school district from seeking bids that did not provide the prevailing wage and fringe benefits. Furthermore, in Northeastern Florida Contractors, supra, the United States Supreme Court held that an association of general contractors had standing to challenge the constitutionality of a city ordinance under the Equal Protection Clause.

In the instant case, plaintiff association presented evidence that its members were exposed to a significantly increased risk of injury without the increased manpower and additional squad company. Plaintiffs’ expert testified at the arbitration hearings that the number of battalions and squad companies represented the manpower the city is able to provide. In previous years there were eleven battalions and eleven squad companies. The idea was to provide a support squad for each battalion. At the time of the hearing, there were nine battalions and six squad companies. This represents a decrease in manpower of thirty-two percent.

Plaintiffs alleged that this appropriation was *666intended to finance plans to bring the number of squads up to the level of battalions. The expert testified that the overall drop in manpower coupled with the unequal distribution of squad support resulted in a substantial safety threat to the fire fighters. Inadequate staffing levels, large coverage areas, and inadequate squad support likely result in an increase in the time and scope of the fire fighters’ assignments. Additionally, they confront the dangers of fires on a daily or at least weekly basis. Therefore, plaintiffs have shown that its members are especially adversely affected by the mayor’s decision not to spend the budget appropriation at issue.4 The general public is affected, but that group is considerably larger than the fire fighters and therefore the fire fighters are at a proportionately higher degree of risk. The fire fighters’ claim affects the safety and well-being of each fire fighter to a sufficiently greater degree than that of the general public and therefore, the fire fighters should be conveyed standing.5

ii

Because we find that the plaintiffs should be conferred standing, we find it necessary to address the substantive issue raised by the plaintiffs, that is, whether the executive branch of the City of *667Detroit may ignore a veto override by the city council and not expend previously appropriated funds? We would hold that because the mayor is responsible for controlling deficit spending and balancing the budget, he is not required to expend appropriated funds.

The decision of the Court of Appeals that found that the actions of the defendant were not prohibited by the Detroit City Charter or state law is consistent with this Court’s rulings in Detroit City Council v Stecher, 430 Mich 74; 421 NW2d 544 (1988), and Detroit City Council v Mayor of Detroit, 449 Mich 670; 537 NW2d 177 (1995) (Levin, J.). In Stecher, this Court concluded that the Detroit City Council did not have the power to unilaterally divert or transfer appropriations. Id. at 77. Applying this broad principle, we must determine whether, in the instant case, city council approval is required before the mayor chooses not to spend appropriated funds.

In Detroit City Council v Mayor, we held that § 17 of the Uniform Budgeting & Accounting Act requires council approval only when it involves the "reallocation or diversion of previously budgeted funds from one use to another . . . .” 449 Mich 678-679 (opinion of Levin, J.). Because "an appropriation is not a mandate to spend,”6 we held that the "mayor is under no obligation under § 17 to continue to spend money in a manner that may ultimately be dangerous to the city’s financial health . . . .” Id. at 681. Therefore, in the present case, the act of not spending previously appropriated funds is within the mayor’s discretionary executive powers.

In Lincoln v Vigil, 508 US 182; 113 S Ct 2024; *668124 L Ed 2d 101 (1993), the Supreme Court explained that the purpose of a lump-sum appropriation is to provide the capacity to adapt to changing circumstances and meet responsibilities in a manner that would be the most effective and desirable. Id. at 113 S Ct 2031, citing Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v Donovan, 241 US App DC 122, 128; 746 F2d 855 (1984). Similarly, the importance of this flexibility is demonstrated by an analysis of the purpose behind the city budget. The city budget is a planning document consisting of proposed expenditures and estimated revenues. The Uniform Budgeting & Accounting Act7 defines an appropriation as 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). Neither the act nor the city charter define or address an appropriation as a mandate to spend.

Section 8-204 of the city charter charges the mayor with the duty to operate the city within a balanced budget, and the mayor must control spending in order to avoid a budget deficit. Once an appropriation has been made, it may only be spent for other purposes and only by a formal transfer instituted by the mayor and approved by the city council. This is a common government restriction. See 3 McQuillin, Municipal Corporations (3d ed rev), § 12.43, p 249.

The charter provides that the city has comprehensive home rule power and that those powers should be liberally construed. Detroit City Charter, art 1, §§ 1-102 and 1-103. To that end, it delegates a great deal of responsibility to the mayor as chief executive and administrative officer. The mayor *669must have the requisite authority and flexibility to perform his charter-mandated duties.8

Under well-established law, the decision of the executive not to spend the entire amount of a lump-sum appropriation when confronting a budget deficit does not constitute an improper change of an adopted budget or an improper encroachment on the legislative authority to approve and amend the budget. Therefore, we would find that the plaintiffs are unable to compel the defendants to spend the appropriated funds in the instant case.

hi

We would grant the plaintiffs standing because they are clearly affected in a different manner and degree than the general public by the subject matter of the substantive claim. However, because an appropriation is not a mandate to spend, the mayor is not required to spend appropriated funds when he is exercising his executive authority to operate within the budget. Thus, we would resolve this case in favor of the defendants.

Levin, J., concurred with Mallett, J.

See Northeastern Florida Contractors v Jacksonville, 508 US 656, —; 113 S Ct 2297, 2303; 124 L Ed 2d 586 (1993).

When the government. erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. [Emphasis added.]

The lead opinion also frequently cites Kaminskas v Detroit, 68 Mich App 499; 243 NW2d 25 (1976). However, Kaminskas is a taxpayer standing case and therefore is not relevant to whether the association possesses standing in the present case.

MCL 38.501 et seq.; MSA 5.3351 et seq.

We agree with the dissenting judge:

The increased risk of injury to fire fighters is different in degree and in kind from that of the general public. A fire fighter is much more likely to sustain injury due to the insufficiency of fire fighters than is a member of the general public. The more fires one encounters, the greater the likelihood of injury. [199 Mich App 129, 135; 501 NW2d 202 (1993).]

The individual plaintiffs also claim that standing should be conferred because of their status either as city employees or as taxpayers. Because we would hold that plaintiff association has standing, we need not reach this issue.

Detroit City Council v Mayor, 449 Mich 680 (Levin, J.) (citing 64 CJS, Municipal Corporations, § 1888, p 454). See also Const 1963, art 5, § 20. "No appropriation shall be a mandate to spend.”

MCL 141.421 et seq.; MSA 5.3228(21) et seq.

Moreover, this concept does not conflict with the separation of powers principles. It is the executive that has the reserved right to withhold appropriated money. There is not a usurpation of the executive powers if the mayor chooses not to spend. The mayor’s discretionary decision is totally within the sphere of powers given to the executive branch of the government. The broad grant of authority given the City of Detroit under the Michigan Constitution, the home rules city act, MCL 117.1 et seq.; MSA 5.2071 et seq., and the 1974 Detroit City Charter, was recently discussed by this Court in Detroit v Walker, 445 Mich 682; 520 NW2d 135 (1994).