Michigan Coalition of State Employee Unions v. Civil Service Commission

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 27, 2001

MICHIGAN COALITION OF STATE

EMPLOYEE UNIONS,

Plaintiff-Appellee,

and

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA (UAW) and LYNDA

TAYLOR-LEWIS,

Intervening

Plaintiffs-Appellees,

v No. 115579

MICHIGAN CIVIL SERVICE COMMISSION,

Defendant-Appellant.

______________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

This case presents the question whether a party alleging

a violation of Const 1963, art 11, § 5, the provision of the

Michigan Constitution related to the state civil service

system, must make a particularized showing of irreparable harm

to obtain a preliminary injunction against the alleged

violation. We conclude that such a showing is required as one

condition of obtaining a preliminary injunction. Accordingly,

we vacate the preliminary injunction entered by the circuit

court in this case in its entirety. Notably, we are not

considering the question whether an actual constitutional

violation, which could be remedied by entry of a permanent

injunction, has occurred.

I. Factual and Procedural Background

This case arises from the adoption by defendant Civil

Service Commission on May 8, 1997, of amended Civil Service

Rule 4-6, with a stated effective date of June 1, 1997. While

the details of this rule are not important to our analysis,

the rule generally governs circumstances in which state

agencies subject to civil service regulation are allowed to

contract and pay for personal services from persons who are

not state civil service employees and procedures to be

followed in that regard. The rule contains two provisions

that have been alleged by plaintiffs to be violative of Const

1963, art 11, § 5.1 First, there is a “preauthorization”

1

Section 5 generally governs the responsibilities and

duties of defendant Civil Service Commission. Central to the

present case is the last paragraph of this constitutional

provision, which states:

(continued...)

2

provision that would allow a state agency to authorize

disbursements for any services on a preapproved list without

submitting a specific request for approval to the Civil

Service Commission. Second, the amended rule would add a new

provision for “decentralized approval” of contracts and

payments for personal services rendered by persons other than

state civil service employees in certain situations.

In June 1997, the trial court granted plaintiffs a

preliminary injunction that prohibited the Civil Service

Commission “from implementing, executing, enforcing, or in any

way giving effect” to Civil Service Rule 4-6. Critical to the

issue presently before this Court, the trial court opined in

its oral ruling on the preliminary injunction motion that a

showing of “some particularized injury or damage” was not

necessary to obtain a preliminary injunction against an

alleged violation of Const 1963, art 11, § 5. The trial court

stated that “if a violation of [§ 5] occurs, my reading is

that would be irreparable harm, not just to the Plaintiffs,

but to every citizen of the state.”

1
(...continued)

No payment for personal services shall be made

or authorized until the provisions of this

constitution pertaining to civil service have been

complied with in every particular. Violation of

any of the provisions hereof may be restrained or

observance compelled by injunctive or mandamus

proceedings brought by any citizen of the state.

3

 In July 1998, the Court of Appeals granted defendant’s

application for leave to appeal from the issuance of the

preliminary injunction, and eventually affirmed in part and

reversed in part.2 The Court of Appeals opined that the

“decentralized approval” subrule of Civil Service Rule 4-6 was

“facially unconstitutional”3 and that the trial court did not

2

While we recognize that the order of the Court of

Appeals granting leave also stayed further proceedings in the

trial court, over a year passed between the issuance of the

preliminary injunction and that Court of Appeals order. It is

undisputed that, during this entire period from June 1997 to

July 1998, the preliminary injunction remained in effect.

While there may be reasons to explain the delay, it does seem

troubling that the parties were subjected to such a long

period of uncertainty and that a preliminary injunction

against an officially promulgated governmental rule remained

in effect for so long without any decision on the merits. We

are today issuing proposed changes to the Michigan Court Rules

to establish limitations on the period in which a preliminary

injunction may be in effect pending final resolution of a

case. The proposed changes to the court rules are attached as

an appendix to this opinion.

3
We note that the Court of Appeals later in its opinion

seemed to disavow reaching a final or ultimate conclusion on

the constitutional issues:

For purposes of reviewing the preliminary

injunction only, we determine that the trial court

properly concluded that plaintiffs were likely to

prevail on their constitutional challenge to the

“decentralized approval” procedure, although it

incorrectly determined that they will likely

prevail in their constitutional challenge to the

preapproval provision. . . . We stress, however,

that our analysis of these issues is for the

purpose of ruling on the propriety of the

preliminary injunction only. When the matters are

tried, the actual determinations of all plaintiffs’

claims must initially be made by the trier of fact

(continued...)

4
abuse its discretion by finding that plaintiffs were likely to

prevail on that provision. 236 Mich App 96, 102; 600 NW2d 362

(1999). However, the Court of Appeals concluded that the

“preauthorization” provisions of the challenged civil service

rule were not facially unconstitutional and that the trial

court abused its discretion by enjoining those provisions.

236 Mich App 103-105.4

Central to the present issue, the Court of Appeals

rejected defendant’s position that plaintiffs should not have

been granted any preliminary injunction whatsoever because of

their failure to show irreparable harm. The Court of Appeals

stated:

Defendant next argues that no injunction

should have been ordered where plaintiffs failed to

demonstrate that they would suffer irreparable

injury if the injunction was not issued. It argues

that “[a] bare allegation of a constitutional

violation fails to demonstrate irreparable harm.”

We disagree because Const 1963, art 11, § 5

specifically provides that “[v]iolation of any of

the provisions hereof may be restrained or

observance compelled by any citizen of the state.”

As a matter of first impression, we believe that

this language is a constitutional declaration that

a violation of Const 1963, art 11, § 5, in itself,

amounts to irreparable harm supporting injunctive

relief. [236 Mich App 106 (emphasis added).]

3
(...continued)

in the trial court. [236 Mich App 104-105.]

4

Given that plaintiffs have not filed a cross-appeal,

the portion of the Court of Appeals opinion reversing part of

the trial court’s preliminary injunction is not before us for

review.

5

While it may have been more clearly stated, the emphasized

language indicates that “a bare allegation of a constitutional

violation” is sufficient to show irreparable harm. In other

words, the Court of Appeals concluded that a showing of

irreparable harm to a particular party is not required for a

preliminary injunction against an alleged violation of § 5.

We granted defendant’s application for leave to appeal,

“limited to the issue whether a showing of irreparable harm is

required to justify a preliminary injunction against an

alleged violation of section 5.” 463 Mich 925 (2000).

II. Analysis

We review a trial court’s grant of injunctive relief for

an abuse of discretion. See, e.g., Holly Twp v Dep’t of

Natural Resources, 440 Mich 891 (1992) (explaining that

“granting of injunctive relief is within the sound discretion

of the trial court, although the decision must not be

arbitrary and must be based on the facts of the particular

case”).

Ordinarily, the first requirement that a party must meet

to request a trial court to grant any type of relief,

including an injunction, is that the party have “standing” to

request the relief. This means that a party is normally

required to have a sufficiently concrete interest in bringing

a case that it can be expected to provide effective advocacy.

6

Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993).

Said another way, standing has been described as a requirement

that a party ordinarily must have a substantial personal

interest at stake in a case or controversy, as opposed merely

to having a generalized interest in the same manner as any

citizen. House Speaker v Governor, 443 Mich 560, 572; 506

NW2d 190 (1993).5 Recently, we have described it even more

5

Justice Powell, in his concurrence in United States v

Richardson, 418 US 166, 192; 94 S Ct 2940; 41 L Ed 2d 678

(1974), articulated reasons for the requirement of standing,

apart from assuring effective advocacy in a particular case:

[W]e risk a progressive impairment of the

effectiveness of the federal courts if their

limited resources are diverted increasingly from

their historic role to the resolution of public­
interest suits brought by litigants who cannot

distinguish themselves from all taxpayers or all

citizens. The irreplaceable value of the power [of

judicial review] articulated by Mr. Chief Justice

Marshall lies in the protection it has afforded the

constitutional rights and liberties of individual

citizens and minority groups against oppressive or

discriminatory government action. It is this role,

not public esteem for the federal courts and has

permitted the peaceful coexistence of the

countermajoritarian implications of judicial review

and the democratic principles upon which our

Federal Government in the final analysis rests.

The considerations outlined above underlie, I

believe, the traditional hostility of the Court to

federal taxpayer or citizen standing where the

plaintiff has nothing at stake other than his

interest as a taxpayer or citizen. It merits

noting how often and how unequivocally the Court

has expressed its antipathy to efforts to convert

the Judiciary into an open forum for the resolution

of political or ideological disputes about the

(continued...)

7

succinctly by indicating that the concept of standing

ordinarily requires that a party have “an interest distinct

from that of the public.” Lee v Macomb Co, 464 Mich ___; ___

NW2d ___ (2001).

It is this requirement that unquestionably is targeted by

§ 5 when it provides that “[v]iolation of any of the

provisions hereof may be restrained or observance compelled by

injunctive or mandamus proceedings brought by any citizen of

the state.” Plaintiffs further contend, however, that more

than this was targeted by § 5's language; that not only did

these words eliminate usual standing requirements, but they

also should be read to mean that the usual requirement that no

preliminary injunction should issue unless the plaintiff could

5
(...continued)

performance of government.

In a similar vein, the United States Supreme Court

observed in Lewis v Casey, 518 US 343, 349; 116 S Ct 2174; 135

L Ed 2d 606 (1996):

The requirement that an inmate alleging a

violation of Bounds [v Smith, 430 US 817; 97 S Ct

1491; 52 L Ed 2d 72 (1977),] must show actual

injury derives ultimately from the doctrine of

standing, a constitutional principle that prevents

courts of law from undertaking tasks assigned to

the political branches. It is the role of courts

to provide relief to claimants, in individual or

class actions, who have suffered, or will

imminently suffer, actual harm; it is not the role

of courts, but that of the political branches, to

shape the institutions of government in such

fashion as to comply with the laws and the

Constitution.

8

demonstrate a showing of irreparable harm was eliminated.

It is important to be clear that the present appeal

involves only the requirements for preliminary injunctive

relief, an extraordinary remedy that is sometimes granted

before a case is even decided on the merits. It is beyond

reasonable dispute that a trial court has the authority, and,

in appropriate cases, the duty, to enter permanent injunctive

relief against a constitutional violation. See, e.g., Sharp

v Lansing, 464 Mich ___; ___ NW2d ___ (2001) (discussing

availability of injunctive relief against a constitutional

violation). Moreover, the plain language of § 5 provides that

“[v]iolation of any of the provisions here may be restrained

or observance compelled by injunctive or mandamus proceedings

brought by any citizen of the state.” Thus, it is plain that

any Michigan citizen may bring an action in a state trial

court against an alleged violation of § 5 and that, if the

trial court in ruling on the merits of the case at its final

resolution concludes a violation has occurred, that violation

may be remedied by appropriate injunctive or mandamus relief

such as a permanent injunction. The only question we are

considering is whether a plaintiff may also obtain a

preliminary injunction against the alleged constitutional

violation before the case is even decided on the merits

without making a particularized showing of irreparable harm.

9

 To evaluate plaintiff’s position regarding the

requirements for a preliminary injunction in the present

context, it is appropriate to begin our analysis by

considering the historical background of Const 1963, art 11,

§ 5.

It is generally accepted that the state’s modern civil

service system had its genesis in the 1936 Report of the Civil

Service Study Commission. Council No 11, AFSCME v Civil

Service Comm, 408 Mich 385, 397; 292 NW2d 442 (1980). That

commission issued “a 94-page ringing condemnation of the

longstanding ‘spoils system’, or ‘patronage system’[6] of state

personnel practices and detailed recommendations for the

6

The report provided the following description of the

prior “spoils system” of state employment:

The spoils system presupposes the existence of

government jobs to be filled with loyal party

workers who can be counted on not to do the state

job better than it can be done by others, but

rather to do the party work or the candidate work

when elections roll around. The state office

buildings are nearly empty during political

conventions, and state money has always been used—

indirectly of course—to enable state employees to

move about the state and keep political fences in

repair.

It is impossible to estimate the loss to the

state of this kind of political activity, but the

most inexperienced know that the amount is

considerable. Not only is the regular work of the

state interrupted or interfered with, but its

services and funds are put at the disposal of

political parties. [Id. at 397 n. 10]

10

enactment of legislation to establish a state civil service

system.” Id. The following year, the Legislature enacted

civil service legislation in 1937 PA 346.

However, the bulk of the civil service reforms enacted in

1937 were gutted during the next regular session of the

Legislature in 1939 when, “obviously dissatisfied with reform

that had been wrought, the newly elected anti-civil service

Legislature adopted a group of bills designed primarily to

destroy the civil service system which had just been

established. . . .” Council No 11, supra at 399.7 Fed up,

the response of the people of the state in 1940 was to place

on the ballot and pass a constitutional amendment,8 described

formally as Const 1908, art 6, § 22. This amendment included

provisions that defined the state employees to be included in

the state civil service, provided for the composition and

7

Among other provisions, the 1939 legislation reduced

the scope of the state classified civil service, reduced the

appropriation for the Civil Service Commission, and provided

increased employment preferences for former state employees.

8
As this Court explained in Council No 11, supra at 400­
401:

Finally, in 1940, apparently dissatisfied with

four years of political maneuvering and legislative

advance and retreat on the civil service system

issue, the people of Michigan adopted a

constitutional amendment establishing a

constitutional state civil service system,

superseding the 1939 legislation.

11

duties of the Civil Service Commission, and, in language that

has been continued in our present Michigan Constitution in

§ 5, provided that “[v]iolation of any of the provisions

hereof may be restrained or observance compelled by injunctive

or mandamus proceedings brought by any citizen of the state.”

Const 1908, art 6, § 22.

Given this background, we then must ask what exactly was

it that the people would have understood they were doing in

passing this amendment, because it is this understanding that

is the key to its meaning. In particular, it is this inquiry

that will answer our question with respect to how expansively

the citizens can be understood to have changed the rules, not

only regarding standing, but also the rules regarding the

irreparable injury requirements for securing a preliminary

injunction.

To begin this probe, basic doctrines regarding

constitutional construction are useful to recall. Initially,

of course, if the language of a constitutional provision is

plain, it is that meaning we give to it. As was stated in

Peterman v Dep’t of Natural Resources, 446 Mich 177, 184; 521

NW2d 499 (1994), we examine how constitutional language was

“understood by its ratifiers at the time of its adoption.”

This is straightforward. Yet, what if the constitutional

language had no plain meaning, but rather is a technical legal

12

term or a phrase of art? In answering this, the great

constitutional law scholar and member of this Court in the

nineteenth century, Justice Thomas M. Cooley, said that in

construing technical legal terms used in a constitution “we

must suppose these words to be employed in their technical

sense.” 1 Cooley, Constitutional Limitations (8th ed), p 132).

Paying heed to this rule, this Court applied this principle to

the technical legal phrase “assistance of counsel” in People

v Pickens, 446 Mich 298; 521 NW2d 797 (1994):

[T]he phrase “assistance of counsel,” by

necessity, will not be defined in great detail in

the constitution. Nevertheless, it is one of many

terms that has “acquired a well-understood meaning,

which the people must be supposed to have had in

view in adopting them.” [Id. at 310, quoting 1

Cooley, supra at 132.]

In a similar vein, this Court observed in Walker v Wolverine

Fabricating & Mfg Co, Inc, 425 Mich 586, 596-597; 391 NW2d 296

(1986), that one method of interpreting constitutional

language that is “in no way a part of the common vocabulary”

(which would surely apply to the phrase “injunctive

proceedings”) is to “survey contemporaneous judicial decisions

and legal commentaries for evidence of a consensus within the

legal community regarding the meaning of a term.” This, then,

is the rule: if a constitutional phrase is a technical legal

term or a phrase of art in the law, the phrase will be given

the meaning that those sophisticated in the law understood at

13

the time of enactment unless it is clear from the

constitutional language that some other meaning was intended.9

Let us then examine what was understood in the law in

1940 by the phrase “injunctive proceedings.” The traditional

rules governing “injunctive proceedings” were well established

by 1940 including a requirement of a showing of irreparable

injury to the person or entity seeking the injunction as a

condition for obtaining a preliminary injunction or, as it was

often termed at the time, an interlocutory injunction.

Indeed, a 1905 treatise on injunctions provided that an

interlocutory injunction will not be allowed “where the injury

which will result from the invasion of that right is not

irreparable.” 1 High, Injunctions (4th ed), § 22, p 367.

Discussion of this point in Michigan case law predating 1940

also indicates that a showing of irreparable harm is a

requirement for the issuance of a preliminary injunction. See

9

It is noteworthy that the Michigan Legislature has

expressly adopted the same basic principle in connection with

the interpretation of its work, statutes, namely, that common

words and phrases are to be understood in conformity with

their common meaning, but that technical words and phrases

should be interpreted in accordance with their technical

meaning:

All words and phrases shall be construed and

understood according to the common and approved

usage of the language; but technical words and

phrases, and such as may have acquired a peculiar

and appropriate meaning in the law, shall be

construed and understood according to such peculiar

and appropriate meaning. [MCL 8.3a.]

14

Baltic Mining Co v Houghton Circuit Judge, 177 Mich 632, 643;

144 NW 209 (1913), where this Court indicated that a

preliminary injunction may be granted “if it appears that

there is a real and substantial question between the parties,

to be investigated in a court of equity, and, in order to

prevent irremedial injury to the complainant, before his

claims can be investigated, it is necessary to prohibit any

change in the conditions and relations of the property and of

the parties during the litigation” (citation omitted).

Similarly, in B Siegel Co v Wayne Circuit Judge, 183 Mich 145,

154; 149 NW 1015 (1914), this Court stated that, for a

landlord to obtain a preliminary injunction against structural

changes to a building, it was necessary to show an

“irreparable injury by reason of the damage done to the

freehold through changes in the building impairing its

structural safety.”10

10
Notably, other cases predating the adoption of the 1940

constitutional amendment that do not expressly state that a

showing of irreparable harm is a requirement for obtaining a

preliminary injunction nevertheless include language

indicating that such a requirement was commonly understood to

exist within the legal community. For example, in Grand

Rapids E R Co v Calhoun Circuit Judge, 156 Mich 419, 421-422;

120 NW 1004 (1909), this Court found no abuse of discretion in

a circuit court’s decision to dissolve a preliminary

injunction where the circuit court concluded that the action

sought to be enjoined would not cause irreparable injury to

the moving party. Similarly, Heliker v Heliker, 184 Mich 657,

659; 151 NW 757 (1915), noted that a preliminary injunction

against cutting trees on a parcel of land was issued after the

(continued...)

15

 Thus, it is clear that in 1940 it was beyond dispute in

the legal community that a party needed to make a

particularized showing of concrete irreparable harm or injury

in order to obtain a preliminary injunction. Moreover, there

is no basis to conclude that the requirements to secure a

preliminary injunction changed in any pertinent way between

the adoption of the amendment in 1940 and the adoption of its

successor, § 5, in the present Michigan Constitution in 1963,

or even up to this day. The requirement of a showing of

irreparable harm remains as it did a century ago. In our

latest statement on this issue in Michigan State Employees

Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365

NW2d 93 (1984), this Court reiterated the requirement of a

showing of irreparable harm as a prerequisite for a

preliminary injunction, explaining that it was a requirement

for the issuance of a preliminary injunction to demonstrate

“that the applicant will suffer irreparable injury if a

preliminary injunction is not granted.”11

10
(...continued)

filing of a complaint alleging “loss and irreparable injury to

the inheritance and great damage to the complainant.”

11
We note that Michigan State Employees Ass’n also arose

in the civil service context. In the course of reversing a

preliminary injunction granted in favor of a discharged civil

service employee, this Court noted that its “holding addresses

the required showing of irreparable injury necessary to

support the issuance of a preliminary injunction.” Id. at

(continued...)

16

 Accordingly, we conclude that a particularized showing of

irreparable harm was, and still is, as our law is understood,

an indispensable requirement to obtain a preliminary

injunction. Moreover, the people, in causing the Michigan

Constitution to be amended in 1940, evidenced no desire, as

they had done with standing, to modify the traditional rules

that had pertained with regard to this requirement for a

preliminary injunction. Therefore, when considering the

request for a preliminary injunction in this matter, the trial

court and the Court of Appeals were in error in granting any

preliminary injunction without a showing of concrete

irreparable harm to the interests of a party before the Court.

We underscore, in accordance with the limited grant of

leave in this case, that we are concerned only with the

requirements for a preliminary injunction. This opinion

expresses no view about the proper resolution of the merits of

this case, i.e., whether Civil Service Rule 4-6 is violative

11
(...continued)

135. This Court stated that such a preliminary injunction

“should issue only in extraordinary circumstances.” Id. at

166.

The Court also outlined that, in addition to the required

demonstration of irreparable harm to the moving party in the

absence of a preliminary injunction, a trial court should

consider (1) harm to the public interest if such an injunction

is issued; (2) whether harm to the applicant absent such an

injunction outweighs the harm it would cause to the adverse

party, and (3) the strength of the moving party’s showing that

it is likely to prevail on the merits. Id. at 157-158.

17

in whole or in part of § 5.

III. Response to Dissent

Contrary to the possible implication of the dissent, this

opinion does not preclude the ability to obtain any injunctive

relief when the Civil Service Commission acts in violation of

§ 5. Nothing of the sort has happened. This appeal does not

involve what relief is available when, after a hearing on the

merits, the court is confronted with whether to issue a

permanent injunction. Rather, we are concerned with the

preliminary injunction, an injunction that is sought before

the parties have had their day in court. Then, in that

situation and that situation alone, the petitioner must

demonstrate irreparable injury. This is utterly

unexceptional. It has, indeed, been our law, as this opinion

has taken pains to point out, unvaryingly since Michigan

became a state. It is, we believe, the law in every other

state of the union as well.

Thus, the dissent is incorrect in describing our approach

as being “to completely destroy the power of ‘any citizen’ to

compel constitutional compliance.” Post, p 10. Nothing in

this opinion restricts, in any way, the authority of a trial

court to grant appropriate relief, including entry of a

permanent injunction, if a Michigan citizen establishes an

actual violation of § 5 when a case is decided on the merits.

18

Rather, pursuant to the plain language of § 5 stating that

“[v]iolation of any of the provisions hereof may be restrained

or observance compelled by injunctive or mandamus proceedings

brought by any citizen of the state, ”any Michigan citizen may

bring suit to challenge an alleged violation of this provision

of the Michigan Constitution without meeting ordinary standing

requirements. Further, if the trial court decides the merits

of the case in favor of the plaintiff, the trial court may

then enter a permanent injunction or other appropriate relief

against the violation–even in the absence of irreparable harm

to any person. This is because § 5 expressly provides the

authority to restrain a violation of its provisions. Thus, if

a trial court, in resolving the merits of a case, determines

that a violation of § 5 has actually occurred, the trial court

necessarily has authority to grant injunctive or mandamus

relief against the violation. However, by definition, a

decision on a preliminary injunction is made before there is

even a determination of the merits of a case. This opinion

merely reaffirms that a plaintiff alleging a violation of § 5

may not obtain preliminary injunctive relief, which in the

ordinary course of things would be addressed before a

constitutional violation has been established, without meeting

the traditional requirements for this extraordinary relief.

Further, we are not “implying that irreparable harm must

19

have already occurred in order for [preliminary] injunctive

relief to be available.” Post, p 6. Rather, as stated

earlier, we recognize that a preliminary injunction may be

appropriately entered if it is demonstrated that “the

applicant will suffer irreparable injury” absent the

preliminary injunction (and the other appropriate

prerequisites to the grant of a preliminary injunction are

met), p 17, quoting Michigan State Employees Ass’n, supra. In

other words, a trial court may properly grant a preliminary

injunction if a party shows that it will otherwise imminently

suffer irreparable harm and the other proper grounds for such

relief are satisfied.

Finally, unlike the dissent, we see nothing

“inconsistent,” post, p 13, n 7, in recognizing that any

Michigan citizen has “standing” to challenge an alleged

violation of § 5, but that a party doing so must make a

particularized showing of irreparable harm in order to obtain

a preliminary injunction against the alleged violation. As we

have discussed, the plain language of § 5 necessarily requires

the courts to allow any Michigan citizen to challenge an

alleged violation of this constitutional provision and to

obtain relief if an actual violation is found when the case is

resolved on the merits. However, a preliminary injunction

before there is a decision on the merits—and, thus, before it

20

can be said that a violation of § 5 has been established in

court—is an extraordinary type of relief available only with

a showing of irreparable harm. It is no more “inconsistent”

to draw this distinction than it is to recognize that there

are multitude of suits between private litigants in which both

sides obviously have standing to litigate the case, but

neither has any basis to obtain a preliminary injunction

against the other.

IV. Conclusion

We conclude that the lower courts erred in viewing a

particularized showing of irreparable harm as unnecessary to

obtaining a preliminary injunction against an alleged

violation of Const 1963, art 11, § 5. In other words, we read

nothing in § 5 that would suggest that, in the civil service

realm, the actions of the government are any more susceptible

to preliminary injunctive relief than are the actions of any

other private or public entity. Pending the resolution of a

suit claiming a violation of § 5, a party to such a suit may

obtain a preliminary injunction only after satisfying all the

requirements traditionally required for this extraordinary

relief. Accordingly, the circuit court abused its discretion

by granting a preliminary injunction in the present case in

the absence of such a showing. Thus, we reverse the Court of

Appeals in part, vacate the preliminary injunction entered by

21

the circuit court in this case in its entirety, and remand

this case to the circuit court for any appropriate proceedings

consistent with this opinion.

CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with

TAYLOR, J.

22

01-XX

Proposed Amendments of

Rules 3.310, 7.208, and 7.213

of the Michigan Court Rules

___________________________

On order of the Court, this is to advise that the

Court is considering amendments of Rules 3.310, 7.208, and

7.213 of the Michigan Court Rules. Before determining whether

the proposal should be adopted, changed before adoption, or

rejected, this notice is given to afford any interested person

the opportunity to comment on the form or the merits of the

proposal. We welcome the views of all who wish to address the

proposal or who wish to suggest alternatives. Before adoption

or rejection, this proposal will be considered at a public

hearing by the Court. The Clerk of the Court will publish a

schedule of future public hearings.

Publication of this proposal does not mean that the

Court will issue an order on the subject, nor does it imply

probable adoption of the proposal in its present form.

[The present language would be amended as indicated below.]

Rule 3.310 Injunctions

(A) Preliminary Injunctions.

(1) - (4) [Unchanged.]

(5) If a preliminary injunction is granted, the

court shall promptly schedule a pretrial

conference. The trial of the action on the

merits must be held within 6 months after the

injunction is granted, unless good cause is

shown or the parties stipulate to a longer

period. The court shall issue its decision on

the merits within 56 days after the trial is

completed.

(B) - (I) [Unchanged.]

Rule 7.208 Authority of Court or Tribunal Appealed From

(A) Limitations. After a claim of appeal is filed or leave

to appeal is granted, the trial court or tribunal may not

set aside or amend the judgment or order appealed from

23

 except

(1) by order of the Court of Appeals,

(2) by stipulation of the parties,

(3) after a decision on the merits in an action in

which a preliminary injunction was granted, or

(4) as otherwise provided by law.

In a criminal case, the filing of the claim of appeal

does not preclude the trial court from granting a timely

motion under subrule (B).

(B) - (I) [Unchanged.]

Rule 7.213 Calendar Cases

(A) - (B) [Unchanged.]

(C) Priority on Calendar. The priority of cases on the

session calendar is in accordance with the dates of the

clerk’s notice to the parties, except that precedence shall be

given to interlocutory criminal appeals, child custody cases,

and interlocutory appeals from the grant of a preliminary

injunction.

(D) - (E) [Unchanged.]

Staff Comment: The proposed amendments of Rules

3.310, 7.208, and 7.213 were announced by the Supreme Court in

Michigan Coalition of State Employee Unions v Michigan Civil

Service Commission, Docket No. 115579 (decided July , 2001).

The amendments would require trial courts to expeditiously

decide actions in which preliminary injunctions have been

granted, and would allow them to proceed even if the Court of

Appeals has granted interlocutory leave to appeal. Similarly,

if the Court of Appeals granted leave to review entry of a

preliminary injunction on an interlocutory basis, that court

would be required to give priority to resolution of the

appeal.

The staff comment is published only for the benefit of the

bench and bar and is not an authoritative construction by the

Court.

24

 _____________________________________________

Publication of this proposal does not

mean that the Court will issue an order

on the subject, nor does it imply

probable adoption in its present form.

Timely comments will be substantively

considered, and your assistance is

appreciated by the Court.

_____________________________________________

A copy of this order will be given to the secretary

of the State Bar and to the State Court Administrator so that

they can make the notifications specified in MCR 1.201.

Comments on this proposal may be submitted in writing or

electronically to the Supreme Court Clerk by November 1, 2001.

P.O. Box 30052, Lansing, MI 48909, or

MSC_clerk@jud.state.mi.us. When submitting a comment, please

refer to File No. 01-XX.

25

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHIGAN COALITION OF STATE

EMPLOYEE UNIONS,

Plaintiff-Appellee,

and

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA (UAW) and LYNDA

TAYLOR-LEWIS,

Intervening

Plaintiffs-Appellees,

v No. 115579

MICHIGAN CIVIL SERVICE

COMMISSION,

Defendant-Appellant.

____________________________________

CAVANAGH, J. (dissenting).

The majority provides interesting commentary on the civil

service system. Yet, it skims only the surface of the issues

necessary to the resolution of this case, and while seeming to

address a narrow issue, leaves behind a rule that could limit

the power that the people have reserved in themselves.1 In my

view, Const 1963, art 11, § 5 clearly preserves the power of

the people to restrain the actions of the Civil Service

Commission whenever the provisions of the constitution are not

complied with. I agree with the courts below that a showing

of a constitutional violation may constitute irreparable harm

to every citizen of this state, and that each citizen may not

only bring injunctive or mandamus proceedings, but also has a

meaningful opportunity to obtain relief. Further, I would

hold that Const 1963, art 11, § 5 does not limit the class of

citizens who may obtain relief in the form of a preliminary

injunction. Therefore, I dissent.

I

The majority spends pages upon pages discussing the

accepted maxim of constitutional construction that the

constitution should be given the meaning intended by the

people. Additional pages are dedicated to establishing that

the existence of irreparable harm is traditionally a

precondition to the issuance of a preliminary injunction.

1

Despite its attempts to leave the issue narrow,

however, the majority expands its opinion to include

discussion of Michigan’s Rules of Court. Because of how the

majority decides this case, the opinion is not affected by the

proposed court rule incorporated into the majority’s appendix.

My comments about the substantive propriety of the court rule

will be reserved for discussion as part of the standard

procedure for implementing court rule changes.

2

Yet, the majority’s observations are somewhat puzzling since

neither the trial court nor the Court of Appeals held that

Const 1963, art 11, § 5 eliminates the requirement that

irreparable harm must be shown. To the contrary, the courts

below held that a constitutional violation may cause

irreparable harm.

The majority errs at the outset by determining that the

rule that irreparable harm must be shown somehow forms a basis

for vacating the preliminary injunction issued by the trial

court. Yet, though I agree with the majority that

irreparable harm must be shown, I believe that the majority is

simply wrong in basing reversal on the theory that “when

considering the request for a preliminary injunction in this

matter, the trial court and the Court of Appeals were in error

in granting any preliminary injunction without a showing of

concrete irreparable harm to the interests of the parties

before the Court.” Slip op at 18. Rather, both courts

explained why irreparable harm to the parties would exist in

this case and clearly found there to be a clear likelihood of

success on the claim of a constitutional violation. The trial

court in fact discussed the issue at great length and the

trial court opinion reveals that the court understood the

requirements of a preliminary injunction. The following

excerpt unequivocally shows that the trial court validly

3

exercised its discretion and found concrete irreparable harm

to the interests of the parties before the Court:

Irreparable harm, there has been a zealous

plea by the Commission, Counsel for the Commission

that these Plaintiffs have to show, as I hear the

argument, some particularized harm. Given that

none of their positions are immediately scheduled

to be eliminated, they cannot make that showing.

* * *

I understand the Plaintiffs claim, assert

their positions are affected, but as I view this

case, they stand before this Court as citizens of

this state, who challenge the conduct of the

Commission in light of its constitutional

obligations. And, unless I read this

constitutional language as having no meaning

whatsoever, a part of Article 11, Section 5 of the

1963 Constitution says very clearly violation of

any of the provisions hereof may be restrained or

observance compelled by injunction, injunctive or

mandamus proceedings brought by any citizen of the

state. No qualification there.

And, that clearly means does somebody have to

show some particularized injury or damage as a

result. I don’t think so. Because, every citizen

of this state is entitled [to] have a civil service

system that works, that does the state’s business

and does it fairly, does it honestly, does it

economically, and we’re all affected. So to that

extent, to the extent that any contract is entered

to [sic] in violation of this constitutional

provision, that any position is abolished in

violation of the constitutional provision, every

citizen of this state is damaged. And, I believe

that I am obligated here to effectuate that

language certainly, that language takes precedence

over . . . some of these other holdings.[2]

I mean, we need to keep in mind . . . this

came about because the Legislature did not act

2

Citations omitted.

4

 sufficiently in the view of Michigan citizens to

protect their interest in having a strong system of

merit in selecting public employees, but in effect

allowed, and apparently had been present for many,

many years, a spoils system. And so, they weren’t

just satisfied to make changes and create [Const

1963, art 11, § 5], they said not only are we

making changes, we are going to empower any citizen

of this state by an action, essentially, at any

time to assure that this provision is complied

with.

So in effect, if a violation of this occurs,

my reading is that would be irreparable harm, not

just to the Plaintiffs, but to every citizen of

this state and the Plaintiffs or someone else, the

citizens of Bay City or the factory workers of

General Motors Corporation can file an action to

bar this unlawful, alleged unlawful activity. And

in this case, I’m satisfied that there is a

sufficient showing the citizens would be harmed,

because it appears that at least one or more of the

provisions of Article 11, Section 5 are not

complied with under the rules as proposed.

[Emphasis added.]

This language demonstrates that the trial court’s holding was

not that plaintiffs are relieved from showing irreparable

harm, but that a constitutional violation irreparably harms

every individual in this state. In other words, the harm

resulting in an art 11, § 5 context does not flow from an

action taken by the Civil Service Commission against a

specific individual as would be the case under the

commission’s view. Instead, the harm flows from the violation

itself, and flows to each individual citizen.

The majority holds that any citizen may obtain permanent

injunctive relief after a constitutional violation occurs, but

5

that a citizen may not obtain a preliminary injunction to

enjoin the probable harm that could result from a

constitutional violation. The majority correctly recognizes

that the derogation of a constitutional right has been held to

be irreparable harm for the purposes of determining injunctive

relief. Slip op at 9-10. Thus, the type of injury wrought by

a constitutional violation can clearly be irreparable. The

majority’s error lies in implying that irreparable harm must

have already occurred in order for injunctive relief to be

available. The fundamental flaw in this logic is that the

point of a preliminary injunction is to preserve the status

quo ante and prevent the harm from occurring until a decision

may be rendered on the merits. In other words, preliminary

injunctive relief is designed to meet the threat of a future

wrong. 42 Am Jur 2d, Injunctions, § 2, § 10. In any event,

an applicant seeking preliminary injunctive relief need only

establish a likelihood of success on the merits. See MSEA v

Dep’t of Mental Health, 421 Mich 152; 365 NW2d 93 (1984).

Further, by precluding preliminary relief in cases where

a citizen alleges that irreparable harm will result if a

constitutional violation is allowed to occur, the majority

essentially rewrites the constitution as providing that

“violation of any of the provisions hereof may be restrained

or compelled by any citizen seeking permanent injunctive or

6

mandamus relief.” However, the constitution is not so

limited. It allows any citizen to compel observance or

restrain violations through injunctive or mandamus

proceedings. As the majority aptly points out, Michigan has

long recognized the availability of preliminary injunctions.

Those injunctions are necessarily issued through injunctive

proceedings.

Like the trial court, the Court of Appeals recognized

that irreparable harm to every citizen occurs simultaneously

with a constitutional violation. It wrote:

Defendant next argues that no injunction

should have been ordered where plaintiffs failed to

demonstrate that they would suffer irreparable

injury if the injunction was not issued. It argues

that “a bare allegation of constitutional violation

fails to demonstrate irreparable harm.” We

disagree because Const 1963, art 11, § 5

specifically provides that “violation of any of the

provisions hereof may be restrained or observance

compelled by injunctive or mandamus proceedings

brought by any citizen of the state.” As a matter

of first impression, we believe that this language

is a constitutional declaration that a violation of

Const 1963, art 11 § 5, in itself, amounts to

irreparable harm supporting injunctive relief.[3]

[236 Mich App 96, 106; 600 NW2d 362 (1999).]

In light of these statements by the courts below, I

believe it clear that the problem the majority finds is not

with the failure to address the existence of irreparable harm,

3

The Court of Appeals did say that an “additional”

showing of irreparable harm was unnecessary, but it first

found that the threatened harm would be irreparable because of

the alleged constitutional violation.

7

but with the idea that the irreparable harm caused by a

violation of Const 1963, art 11, § 5 may be remedied by

preliminary injunctive proceedings brought by any citizen

rather than only by citizens affected in some way peculiar

from the rest of the populace. I agree with the courts below

and believe that the majority’s approach is contrary to the

language and purpose of the constitution.

II

The majority acknowledges that the lower courts stated

that a constitutional violation amounts to irreparable harm,

but nonetheless concludes that neither court required a

finding of the requisite irreparable harm. Specifically, the

majority writes:

Critical to the issue presently before this

Court, the trial court opined in its oral ruling on

the preliminary injunction motion that a showing of

“some particularized injury or damage” was not

necessary to obtain a preliminary injunction

against an alleged violation of Const 1963, art 11,

§ 5. The trial court stated that “if a violation

of [§ 5] occurs, my reading is that would be

irreparable harm, not just to the Plaintiffs, but

to every citizen of the state.” Slip op at 3-4.

Similarly, with respect to the Court of Appeals opinion, the

majority writes:

While it may have been more clearly stated,

the emphasized language indicates that “a bare

allegation of a constitutional violation” is

sufficient to show irreparable harm. In other

words, the Court of Appeals concluded that a

showing of irreparable harm to a particular party

is not required for a preliminary injunction

8

 against an alleged violation of § 5. [Slip op at 6,

emphasis added.]

While I agree with the majority that the courts below said

that a constitutional violation is equivalent to irreparable

harm, I do not agree with the conclusion that the courts “in

other words” implied that harm to an individual party need not

be shown. Rather, in my view, the courts below “in other

words” said that every individual citizen is irreparably

harmed by a constitutional violation. I am at a loss to

understand how the Court’s statement that these plaintiffs

would suffer irreparable harm can simultaneously be a

conclusion that the plaintiffs need not show that they

themselves would suffer irreparable harm. The majority makes

the mistake of reading the trial court opinion as providing

that any citizen can bring suit by saying, “I can bring suit

for all of us, because society as a whole is harmed by a

violation of Const 1963, art 11, § 5.” In my view, the trial

court decision actually provides that a violation of Const

1963, art 11, § 5 injures each citizen individually. As such,

every citizen may institute injunctive or mandamus

proceedings. Thus, under the trial court opinion, any

plaintiff bringing suit would be constitutionally authorized

to allege “I will be hurt individually because of the

9

violation.”4

Interestingly, the majority concludes:

[S]tanding has been described as a requirement

that a party ordinarily must have a substantial

personal interest . . . as opposed merely to having

a generalized interest in the same manner as any

citizen. . . . It is this requirement that

unquestionably is targeted by § 5 when it provides

that “violation of any of the provisions hereof may

be restrained or observance compelled by injunctive

or mandamus proceedings brought by any citizen of

this state.” Slip at 7-9.

Despite the fact that the aforementioned constitutional

language mentions neither standing nor the requirements for a

preliminary injunction, the majority reaches the conclusion

that particularized injury is suspended for the purposes of

coming before the Court, but once there, particularity is

reintroduced in association with the requirement that

irreparable harm be shown. In other words, under the

majority’s approach, anyone can come before the court to seek

an injunction, but if the person cannot show the type of

particularized harm that would normally be required for

standing purposes, then they cannot obtain relief in the form

of a preliminary injunction. The effect of such an approach

is to completely destroy the power of “any citizen” to compel

constitutional compliance.

4

In any event, this issue relates to the question of

standing, as will be further explained.

10

 The constitutional language does not provide only that

injunctive proceedings may be brought by any citizen. It

additionally says that a violation may be restrained or

observance compelled by any citizen. Yet, under the majority

view, only a citizen whose job will be adversely affected by

a decision of the commission may restrain the violation by

preliminary injunctive proceedings. Thus, in the context of

preliminary proceedings, the protection afforded to “any

citizen” of this state effectively becomes a protection

afforded to a limited class of citizens. I cannot support an

approach that allows all citizens with valid legal claims

regarding a constitutional violation to institute legal

proceedings, but which nullifies the purpose of those

proceedings by making preliminary injunctive relief per se

unavailable to a large percentage of those citizens despite

the contrary purpose and language of our constitution.

I believe that the problem created by the majority

approach stems in part from the fact that the majority injects

particularity into its analysis of irreparable harm, rather

than limiting the question of particularity to the standing

context. The generally accepted analysis used in preliminary

injunction cases considers four factors:

harm to the public interest if an injunction

issues, whether the harm to the applicant in the

absence of a stay outweighs the harm to the

opposing party if a stay is granted; the strength

11

 of the applicant’s demonstration that the applicant

is likely to reveal on the merits; and

demonstration that the applicant will suffer

irreparable injury if a preliminary injunction is

not granted. [MSEA v Dep’t of Mental Health, 421

Mich 152; 365 NW2d 93 (1984).]

The focus of the four-factor analysis is on the type of injury

rendered by the issuance or nonissuance of an injunction. In

the context of issuing injunctions, irreparable injury has

special meaning under the law. The injury is traditionally

defined in terms of whether the injury can be repaired by

means other than through the issuance of an injunction.5

Although it is true that the MSEA test and the tests

applied in various cases cited by the majority refer to

injuries to the “plaintiff” or to the “complainant,” the

references are fairly unremarkable since it is always the

complainant who seeks redress of an injury. Also, in an

injunction case involving subject matter not governed by a

constitutional provision such as Const 1963, art 11, § 5, the

complainant will have had to prove particularity in order to

establish standing. What is remarkable, however, is the fact

that the majority offers no authority for the proposition that

a plaintiff must show that the harm he suffers is somehow

5

For example, Black’s law dictionary provides the

following explanation, “‘Irreparable injury’ justifying an

injunction is that which cannot be adequately compensated in

damages or for which damages cannot be compensable in money.”

Black’s Law Dictionary (6th ed), p 786.

12

irreparable in a different way than it is irreparable to any

other plaintiff. The reason, in my view, is that the

“requirement that a party ordinarily must have a substantial

personal interest at stake in a case or controversy as opposed

merely to have a generalized interest in the same manner as

any citizen,”6 pertains to standing and not to the question

whether a party will suffer irreparable harm.7 Here, Const

1963, art 11, § 5 specifically confers standing on all

citizens.

For all these reasons, I believe that the majority

opinion is erroneous and that its reasoning fails to support

its conclusion. I prefer the reasoning and holding of the

trial court. I would, therefore, affirm the recognition by

the courts below that irreparable harm may be established by

6

Slip op at 6-7.

7
As was recently recognized by a majority of this Court

in Lee v Macomb Co, 464 Mich ___; ___ NW2d ___ (2001), the

type of particularized harm referenced by the majority is

clearly a requirement of the standing doctrine. As noted

previously, no similar particularity requirement is required

as part of the irreparable harm inquiry. However, even if I

agreed with the majority that particularity is required in the

context of irreparable harm, as explained at length in this

opinion, I believe it is inconsistent to conclude that the

people of the state of Michigan intended to suspend the

requirement of particularized harm for the purpose of allowing

citizens to enter the courtroom door, but nonetheless those

citizens must afterward show the very type of particularized,

concrete harm suspended for standing purposes in order to

receive a preliminary injunction.

13

proof of a violation of Const 1963, art 11, § 5, and hold that

the trial court did not abuse its discretion.

WEAVER and KELLY , JJ., concurred with CAVANAGH , J.

14