ANNABELLE R HARVEY V STATE OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
ANNABELLE R. HARVEY, Beneficiary of
PAUL HARVEY, Deceased, and MICHAEL F.
MERRITT,
FOR PUBLICATION
May 10, 2002
9:30 a.m.
Plaintiffs-Appellants,
and
BRUCE A. FOX,
Plaintiff,
No. 227140
Ingham Circuit Court
LC No. 94-077760-AZ
v
STATE OF MICHIGAN, DEPARTMENT OF
MANAGEMENT & BUDGET, BUREAU OF
RETIREMENT SERVICES, and JUDGES
RETIREMENT BOARD,
Defendants-Appellees.
Updated Copy
August 16, 2002
Before: Fitzgerald, P.J., and Bandstra and K.F. Kelly, JJ.
BANDSTRA, J.
Plaintiffs appeal as of right from the circuit court's opinion and order granting summary
disposition to defendants under MCR 2.116(C)(10) and holding that the treatment accorded by
statute to judges of the 36th District Court with regard to retirement benefits does not violate the
Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, § 2. The trial court had
previously granted summary disposition in favor of defendants and, on appeal to this Court, we
vacated the trial court's opinion and remanded the case for fact finding and application of the
intermediate scrutiny test. We now reverse and remand.
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Factual Background and Prior Proceedings
Plaintiff judge1 is a retired district judge who served "outstate" rather than in the 36th
District Court in Detroit. At issue in this appeal is the statutory scheme that guarantees 36th
District Court judges a greater retirement benefit than judges from other district courts.2
Specifically, 36th District Court judges, who are "plan 5" members,3 are entitled to a retirement
benefit calculated on a compensation level including both the salary paid to them by the state and
the salary paid to them by the district control unit of the 36th District Court,4 while other district
court judges, who are "plan 3" members,5 are paid a retirement benefit based on compensation
including only the salary paid by the state.6 Although the statutes have been amended
repeatedly, this system has been in place since 1980.
In their brief, the state defendants provide an explanation of the reasons this approach
was initially adopted:
In the early 1980s, the State Legislature recognized the practical need for
state government to streamline its operations and eventually assume the cost of
the State's judicial system. . . .
. . . The need to reorganize and streamline was most urgent in Wayne
County and the City of Detroit because they were in financial distress . . . . For
that reason, the Legislature took a greater role in reorganizing and assuming the
court operation costs of the newly created 36th District Court. . . .
* * *
1
Paul Harvey, a retired district court judge, was one of the original plaintiffs in this matter.
During the pendency of the proceedings, Paul Harvey died and Annabelle Harvey, his
beneficiary, was substituted as a party plaintiff. Also during the proceedings on remand,
Michael F. Merritt, a retired district court judge, was substituted for Bruce A. Fox, the other of
the original named party plaintiffs.
2
Although plaintiffs' original complaint also contained allegations regarding disparity in salaries
between district judges, those allegations are no longer at issue.
3
MCL 38.2108(8).
4
MCL 38.2104(d).
5
MCL 38.2108(3).
6
MCL 38.2104(b). As the state defendants point out in their brief, this disparity is mitigated, but
only somewhat, by current statutory provisions allowing district court judges to convert a portion
of their locally paid salary to their state-paid salary for retirement benefit calculation purposes.
See MCL 38.2503 and MCL 38.2504.
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To address the problems facing Wayne County and Detroit and to pave the
way for state funding of trial court operations, the Legislature suggested that the
courts in Wayne County and Detroit be reorganized with the help of much-needed
State money. . . . Thus, the natural and distinguishing characteristics of the 36th
District Court from other districts are its origin and history. . . .
The decision by the Legislature to allow the [state-operated Judicial
Retirement System] to be the retirement carrier for the locally-paid salaries of
36th District Court judges, in addition to being the retirement carrier for their
state-paid salaries, was a discretionary one in conformity with the Legislature's
scheme to assist the financially troubled City of Detroit.
The trial court here appropriately characterized the disparate benefit scheme about which
plaintiffs complain as being an experimental approach to funding retirement benefits that began
in the 36th District Court but which has not since been expanded fully for the benefit of other
district court judges:
The Court takes judicial notice of the fact that the legislative scheme here
at issue was enacted in 1980. Both sides appear to agree that the primary
legislative intent was to make a start toward full State funding of Michigan's trial
court system. Defendants assert that the legislation set "a target of October 1,
1988 for State assumption of costs for all trial court operations," . . . and that this
goal was not met; the Court takes judicial notice of the fact that it is still not met
as of March of 2000.
Although the legislature has enacted a number of amendments to the
State's judicial pension scheme in the intervening years, the essential elements
differentiating calculation of 36th District judges' defined benefit pensions remain
as enacted in 1980 (the recently authorized "defined contribution" pension option
is not at issue in this case). This is analogous to the Legislature having declared
in 1980, "we intend to give every Michigan taxpayer an annual exemption of
$5,000, and we begin with John Smith." When, in the year 2000, John Smith
remains the sole beneficiary, it is time to recognize the reality.
The trial court noted that, in a prior appeal of this matter to our Court (Harvey I),7 a panel
characterized the special treatment afforded to retired judges of the 36th District Court as being
"a discrete exception to a general rule" that is "no longer 'experimental.'"8
The Harvey I panel further concluded that plaintiffs' equal protection claim should be
tested using "the heightened or intermediate level [of scrutiny]."9 The matter was remanded to
7
Harvey v Michigan, unpublished opinion per curiam of the Court of Appeals, issued January 3,
1997 (Docket No. 187112).
8
Id., slip op at 1-2.
9
Id., slip op at 2.
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the trial court for further fact finding in this regard, the panel directing that "when legislation is
subject to intermediate scrutiny, the state bears the burden of showing the legislation is
substantially related to an important state interest. . . . Thus, defendants must show the facially
discriminatory provisions attacked by plaintiffs are substantially related to an important state
interest."10
Notwithstanding that the burden was thus clearly on defendants to develop a factual
record showing that the statutory scheme at issue is substantially related to an important state
interest, the parties stipulated that there is no dispute of facts or need for trial and both moved for
summary disposition. The trial court denied plaintiffs' motion and granted defendants',
concluding that there was no equal protection violation.
Analysis
We review summary disposition decisions and constitutional issues de novo.11 We
conclude that the trial court erroneously determined that the statutory scheme did not violate
equal protection.
This question was considered in 77th Dist Judge v Michigan.12 There, this Court
analyzed, in dicta,13 a similar, older version of the present statutory scheme, and found that it
violated equal protection:
We hold that the statutory disparity in treatment as to . . . retirement
benefits violates equal protection. We are unable to discern any constitutionally
appropriate basis for the disparities that would permit us to find a reasonable
relationship to the object of the legislation or that would avoid the conclusion that
the 36th District judges' preferred . . . treatment is arbitrary and unreasonable. . . .
Although defendant suggests that the particular compensation package afforded
36th District judges is attributable to the transition from those judicial positions
superseded by the creation of the 36th District Court, it remains to be explained
what significance these historical facts have at this present time or why they serve
to justify more favorable compensation and benefits. In short, no reason has been
put forth explaining why the duties, responsibilities, and circumstances of service
10
Id. The holding in Harvey I was limited to a determination of the level of scrutiny applicable
to plaintiffs' equal protection claim. Contrary to plaintiffs' arguments, the Harvey I panel did not
conclude that the discriminatory statutory classification at issue here violated the Equal
Protection Clause when subjected to that level of scrutiny.
11
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Kuhn v Secretary
of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).
12
77th Dist Judge v Michigan, 175 Mich App 681; 438 NW2d 333 (1989).
13
77th Dist Judge determined that the Court of Claims had no jurisdiction to grant injunctive and
declaratory relief or to award plaintiffs back pay and back retirement benefits. Id. at 692-700.
Because those jurisdictional holdings were outcome determinative, that panel's conclusions
regarding the constitutionality of the statutory scheme challenged are dicta.
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obtaining in the 36th District Court provide the basis for any reasonable
justification of more favorable treatment than their counterparts in the other
judicial districts of this state. Accordingly, we find . . . that the statutory
disparities are unconstitutional.[14]
In other words, the 77th Dist Judge panel reasoned that whatever historical reasons might have
justified treating 36th District judges differently in the beginning of the process of full funding in
1980, those "historical facts" could no longer "justify more favorable . . . benefits" in 1989.15
We note that 77th Dist Judge has been cited approvingly in several cases and that its
equal protection analysis has never been cited disapprovingly.16 We find persuasive its
conclusion that the statutory scheme challenged here could no longer be justified under an equal
protection analysis in 1989. This conclusion applies with even greater force at this later date.
The trial court used reasoning similar to that of 77th Dist Judge in concluding that the
challenged benefit scheme of the Judges Retirement Act,17 considered alone, "fails the test" of
equal protection scrutiny because "[i]t is no longer related to the important governmental purpose
of full State funding of judicial salaries or pensions." Nonetheless, the trial court examined "the
entire body of state law governing district judges' pensions" and concluded that there was no
equal protection violation. We disagree.
The trial court reasoned that other statutes grant local funding units the authority to
provide a judicial retirement pension and, in fact, that many such units do provide a pension
supplementary to that afforded by the statutes at issue here. The court further noted that pursuant
to that authority, at least one funding unit has provided a local pension which, when combined
with the pension afforded by the challenged state system here, is greater than the pension
afforded to similarly situated 36th District judges. The trial court reasoned that because some
outstate judges might receive equal or better total retirement benefit treatment than do 36th
District Court judges, the equal protection challenge fails.
We find this reasoning erroneous. The gist of plaintiffs' complaint is that the state,
through the statutes challenged, has guaranteed to retired judges of the 36th District Court a level
of retirement benefits that is not guaranteed to retired judges of outstate district courts. That, in
fact is the case, and, with that conclusion, an equal protection analysis appropriately should end.
It does not matter that some retired judges of outstate district courts might, depending on the
largess of their local funding units, receive a total retirement benefit equal to or better than that
afforded to 36th District Court judges.18 What matters is that retired judges of outstate district
14
Id. at 691-692.
15
Id.
16
See, e.g., Lewis v Michigan, 464 Mich 781, 787-788, n 4; 629 NW2d 868 (2001), and In re
Pensions of 19th Dist Judges Under Dearborn Employees Retirement System, 213 Mich App
701, 705; 540 NW2d 784 (1995).
17
MCL 38.2101 et seq.
18
Similarly, if a statute criminalizing certain behavior but only if committed by certain citizens
(continued…)
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courts do not receive the same statutorily guaranteed benefit as do retired judges of the 36th
District Court.
We reverse the decision of the trial court granting summary disposition to defendants and
denying summary disposition to plaintiffs. We remand for further proceedings regarding the
appropriate remedy, if any, that might be afforded to plaintiffs.19 We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Kirsten Frank Kelly
(…continued)
was challenged on equal protection grounds, it would not matter that, through the exercise of
prosecutorial discretion, some targeted citizens engaging in that behavior were never charged.
19
We do not address defendants' arguments that no damage award can be afforded to plaintiffs or
that the circuit court is without subject-matter jurisdiction to consider this case. These arguments
did not form the basis for the trial court's decision to grant defendants summary disposition and
would be better resolved, at least initially, at the trial court level.
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