ASSOCIATED BUILDERS AND CONTRACTORS V DIRECTOR CONSUMER & INDUSTR
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MARCH 9, 2005
ASSOCIATED BUILDERS AND CONTRACTORS,
SAGINAW VALLEY AREA CHAPTER,
Plaintiff-Appellant,
o. 124835
N
v
KATHLEEN M. WILBUR, DIRECTOR OF THE MICHIGAN
DEPARTMENT OF CONSUMER & INDUSTRY SERVICES AND
PROSECUTING ATTORNEY,
Defendants-Appellees,
and
MICHIGAN STATE BUILDING & CONSTRUCTION
TRADES COUNCIL,
Intervenor/Defendant/Appellee,
and
MICHIGAN CHAPTER OF THE NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION, INC., a Michigan
Corporation, MICHIGAN MECHANICAL CONTRACTORS
ASSOCIATION, a Michigan Corporation, and
MICHIGAN CHAPTER OF SHEET METAL AIR CONDITIONING
CONTRACTORS NATIONAL ASSOCIATION, a Michigan Corporation
Intervenors/Defendants/Appellees,
and
MICHAEL D. THOMAS, Saginaw County
Prosecuting Attorney,
Intervenor/Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Plaintiff,
the
Saginaw
Valley
Area
Chapter
of
Associated Builders and Contractors, brought this action
for
declaratory
constitutionality
and
of
injunctive
the
relief,
prevailing
challenging
wage
act
the
(PWA).1
Plaintiff argues that the PWA is unconstitutionally vague
and
constitutes
an
unconstitutional
delegation
of
legislative authority to unions and union contractors.
The
circuit
court
denied
defendants’
motions
for
summary disposition regarding the plaintiff’s claim that
the
PWA
constitutes
an
unconstitutional
delegation
of
legislative authority and dismissed plaintiff’s vagueness
claim.
Defendants appealed and plaintiff cross-appealed.
The Court of Appeals reversed in part and affirmed in part,
holding that plaintiff could not seek declaratory relief
because plaintiff had alleged no “actual controversy” under
the Michigan court rule governing declaratory judgments,
MCR 2.605.
1
MCL 408.551 et seq.
2
We reverse the decision of the Court of Appeals and
hold that plaintiff has presented an “actual controversy”
so that plaintiff can seek declaratory relief under MCR
2.605.
We do not address the substantive issue regarding
the constitutionality of the PWA; instead, we remand to the
Court of Appeals for reconsideration and resolution of the
defendants’
appeal
and
plaintiff’s
cross-appeal
on
the
merits.
I
Plaintiff
is
the
Saginaw
Valley
Associated Builders and Contractors.
Area
Chapter
of
Associated Builders
and Contractors is a nonunion trade association with over
two
hundred
members
in
the
construction
industry
in
thirteen Michigan counties.
Plaintiff’s
members—contractors,
subcontractors,
and
builders among others—are required by the PWA to pay their
workers not less than the wage and benefits prevailing in
the
locality
state.
on
projects
sponsored
or
financed
by
The PWA provides in relevant part:
Every
contract
executed
between
a
contracting agent and a successful bidder as
contractor
and
entered
into
pursuant
to
advertisement and invitation to bid for a state
project which requires or involves the employment
of construction mechanics . . . and which is
sponsored or financed in whole or in part by the
state shall contain an express term that the
rates of wages and fringe benefits to be paid to
3
the
each class of mechanics by the bidder and all of
his subcontractors, shall be not less than the
wage and fringe benefit rates prevailing in the
locality in which the work is to be performed.
[MCL 408.552.]
The PWA provides further that “[a]ny person, firm or
corporation or combination thereof, including the officers
of any contracting agent, violating the provisions of this
act is guilty of a misdemeanor.”
MCL 408.557.
On July 12, 2000, plaintiff brought this declaratory
action
challenging
the
constitutionality
of
the
PWA.
Plaintiff alleges that the manner in which the prevailing
wage is determined under MCL 408.554 of the PWA constitutes
an unconstitutional delegation of legislative authority to
unions and union contractors.2
2
Moreover, plaintiff alleges
MCL 408.554 provides:
The commissioner [the Department of Consumer
and Industry Services, now the Department of
Labor
and
Economic
Growth]
shall
establish
prevailing wages and fringe benefits at the same
rate that prevails on projects of a similar
character
in
the
locality
under
collective
agreements or understandings between bona fide
organizations of construction mechanics and their
employers. Such agreements and understandings, to
meet the requirements of this section, shall not
be controlled in any way by either an employee or
employer organization. If the prevailing rates of
wages and fringe benefits cannot reasonably and
fairly be applied in any locality because no such
agreements
or
understandings
exist,
the
commissioner shall determine the rates and fringe
benefits for the same or most similar employment
in the nearest and most similar neighboring
4
that
the
resulting
determination
is
unconstitutionally
vague because it does not provide an individual of ordinary
intelligence
notice
of
the
conduct
that,
if
undertaken,
would violate the statute.
Plaintiff
named
as
a
defendant,
Kathleen
Wilbur,
former Director of the Department of Consumer and Industry
Services (CIS), now the Department of Labor and Economic
Growth,
which
oversees
the
implementation
of
the
PWA.
Because the PWA is a criminal statute, plaintiff also named
Midland County's prosecuting attorney, who is charged with
the
enforcement
and
prosecution
of
the
PWA
in
Midland
County, Michigan.
The Saginaw County prosecutor and the Michigan State
Building & Construction Trades Council (MSBCTC) intervened
by
stipulation
associations,
Electrical
as
the
defendants.
Michigan
Contractors
Three
Chapter
Association,
union
of
Inc.
the
contractor
National
(NECA),
the
Michigan Mechanical Contractors Association (MCA), and the
locality
in
which
such
agreements
or
understandings do exist. The commissioner may
hold public hearings in the locality in which the
work is to be performed to determine the
prevailing wage and fringe benefit rates. All
prevailing
wage
and
fringe
benefit
rates
determined under this section shall be filed in
the office of the commissioner of labor and made
available to the public.
5
Michigan
Chapter
of
Sheet
Metal
&
Air
Conditioning
Contractors National Association (SMACNA), also intervened
by motion as defendants.
The Midland County prosecutor and defendant-intervenor
MSBCTC filed motions under MCR 2.116(C)(4), (8), and (10),
arguing that
the circuit court lacked jurisdiction under
MCR 2.605(A) because plaintiff's complaint did not present
an “actual controversy” as required by the court rule.
The
several defendants also moved for summary disposition on
the merits.
On December 15, 2000, the circuit court denied the
motions for summary disposition that argued that plaintiff
had
not
2.605(A).
met
the
actual
controversy
requirement
of
MCR
Then, on March 20, 2001, the circuit court ruled
on the motions for summary disposition on the merits.
The
court granted the motions regarding plaintiff's vagueness
challenge to the PWA.
However, the circuit court denied
the motions regarding plaintiff's challenge to the PWA as
an
unconstitutional
delegation
of
legislative
authority,
thus allowing that claim to proceed.
Defendants appealed by leave granted and plaintiffs
cross-appealed from the circuit court’s orders.
The Court
of Appeals concluded that plaintiff had alleged no “actual
controversy” under MCR 2.605(A).
6
Accordingly, the Court of
Appeals reversed the circuit court's denial of defendants’
motion
for
summary
disposition
of
the
claim
of
unconstitutional delegation of legislative authority and,
in
plaintiff’s
cross-appeal,
affirmed
the
dismissal
of
plaintiff’s vagueness claim.3
This Court ordered that oral argument be held with
regard to plaintiff’s application for leave to appeal.4
II
This
case
is
before
us
on
appeals
from
orders
regarding motions for summary disposition, which we review
de
novo.
(1999).
and
Maiden
v
Rozwood,
461
Mich
109;
597
NW2d
817
The interpretation and application of court rules
statutes
present
reviewed de novo.
a
question
of
law
that
is
also
Cardinal Mooney High School v Michigan
High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21
(1991).
III
Plaintiff seeks a declaratory judgment regarding the
constitutionality of the PWA.
“[a]
binding
litigants
.
adjudication
.
.
[which]
of
is
3
A declaratory judgment is
the
rights
conclusive
and
in
a
status
subsequent
Unpublished opinion per curiam of the Court
Appeals, issued August 5, 2003 (Docket No. 234037).
4
471 Mich 877 (2004).
7
of
of
action between the parties as to the matters declared . . .
.”5
Declaratory judgments are procedural remedies.
They
allow
parties to avoid multiple litigation by enabling
litigants to seek a determination of questions
formerly not amenable to judicial determination .
. . . [6]
The availability of declaratory judgments in Michigan
is
governed
by
MCR
2.605.
The
court
rule
provides
in
pertinent part:
(A) Power to Enter Declaratory Judgment.
(1) In a case of actual controversy within
its jurisdiction, a Michigan court of record may
declare the rights and other legal relations of
an
interested
party
seeking
a
declaratory
judgment, whether or not other relief is or could
be sought or granted.
(2) For the purpose of this rule, an action
is considered within the jurisdiction of a court
if the court would have jurisdiction of an action
on the same claim or claims in which the
plaintiff sought relief other than a declaratory
judgment.
The plain text of the declaratory judgment rule makes
clear that the power to enter declaratory judgments neither
limits nor expands the subject-matter jurisdiction of the
court.7
5
The court must have “jurisdiction of an action on
Black’s Law Dictionary (6th ed), p 409.
6
Allstate Ins Co v Hayes, 442 Mich 56, 65; 499
NW2d 743 (1993)(citations omitted).
7
Id. at 65 n 9.
8
the same claim or claims in which the plaintiff sought
relief . . . .”8
Moreover, the rule requires that there
be “a case of actual controversy” and that a party seeking
a declaratory judgment be an “interested party,” thereby
incorporating
traditional
restrictions
on
justiciability
such as standing, ripeness, and mootness.9
This
requirement
Court
of
justiciability
relief.”10
has
MCR
as
the
described
the
2.605(A)(1)
necessary
“actual
as
“a
condition
controversy”
summary
for
judicial
Thus,
if a court would not otherwise have subject
matter jurisdiction over the issue before it or,
if the issue is not justiciable because it does
not involve a genuine, live controversy between
interested persons asserting adverse claims, the
decision
of
which
can
definitively
affect
existing legal relations, a court may not declare
8
MCR 2.605(A)(2).
9
The United States Supreme Court has recognized that
[j]usticiability is of course not a legal concept
with a fixed content or susceptible of scientific
verification.
Its utilization is the resultant
of
many
subtle
pressures,
including
the
appropriateness of the issues for decision by
this Court and the actual hardship to the
litigants of denying them the relief sought.”
[Poe v Ullman, 367 US 497, 508-509; 81 S Ct 1752;
6 L Ed 2d 989 (1961).]
10
Allstate, supra at 66.
9
of
the rights and obligations of the parties before
it.[11]
The requirement that a party demonstrate an interest in the
outcome that will ensure sincere and vigorous advocacy is
expressly subsumed in the declaratory judgment rule, which
allows the declaration of rights of an “interested party .
. . .”12
This Court has held that an “actual controversy” under
MCR 2.605(A)(1) exists
where a declaratory judgment or decree is
necessary to guide a plaintiff’s future conduct
in order to preserve his legal rights. . . .
This requirement . . . prevents a court from
deciding hypothetical issues.[13]
This
Court
has
emphasized
that
controversy
requirement
precludes
hypothetical
issues,
court
reaching
issues
occurred.”14
“a
before
actual
although
a
is
court
not
injuries
the
from
actual
deciding
precluded
or
losses
from
have
The essential requirement of the term “actual
controversy” under the rule is that plaintiffs “plead and
11
Id. (citations omitted).
12
Id. at 68.
13
Shavers v Attorney General, 402 Mich 554, 588-589;
267 NW2d 72 (1978).
14
Id. at 589.
10
prove
facts
which
indicate
an
adverse
interest
necessitating the sharpening of the issues raised.”15
The “actual controversy” and the “interested party”
requirements of MCR 2.605(A)(1) subsume the limitations on
litigants’ access to the courts imposed by this Court’s
standing doctrine.
To have standing:
“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.’” [16]
Yet without analysis of plaintiff’s standing under Lee
v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900
(2001), the Court of Appeals panel below concluded that
plaintiff was not eligible for declaratory relief because
15
Id.
16
Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739;
629 NW2d 900 (2001), quoting Lujan v Defenders of Wildlife,
504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992).
This Court has declined to consider whether the Legislature
can confer standing more broadly than Lee’s test.
See
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471
Mich 608, 632; 684 NW2d 800 (2004).
Because the PWA does
not confer standing by its own terms, plaintiff’s standing
in this case is governed by the test adopted in Lee, supra.
11
plaintiff had not established “that there was an actual or
imminently threatened prosecution of any of its members,
nor
has
plaintiff
shown
that
a
declaratory
judgment
or
decree is necessary to guide its future conduct in order to
preserve its legal rights with respect to any particular
contract or bid.”
On this basis, the Court of Appeals held
that
court
the
circuit
declaratory
judgment.
lacked
The
jurisdiction
Court
of
to
Appeals
enter
a
analysis
regarding the availability of declaratory relief under MCR
2.605 was too restrictive.
It has been conceded by the defendant prosecutor that
it must enforce the PWA.17
But regardless, neither Lee,
supra, nor the plain text of MCR 2.605 requires a plaintiff
regulated by a criminal statute to submit evidence of a
threat
of
standing.
Lee,
imminent
in
order
to
establish
It is sufficient to establish standing under
supra,
association
prosecution
that
are
the
directly
members
of
regulated
by
plaintiff
the
PWA
business
and
must
conform their pay and benefit practices to that of union
contractors on state-funded projects under the statute.18
17
Thus, this case is distinguishable from Poe, supra
at 508, where the United States Supreme Court held that
declaratory relief was improper because there was no
realistic fear of prosecution.
18
MCL 408.552 and MCL 408.554.
12
Plaintiff’s members suffer a concrete, rather than a
hypothetical,
injury
because
they
either
face
criminal
prosecution for a violation of the statute or must avoid
state-funded work entirely.19
Such evidence establishes the
existence of a legally protected interest, causation, and
redressibility as required by Lee, supra.
Moreover,
as
a
previous
Court
of
Appeals
decision
addressing declaratory relief recognized:
“A declaratory action is a proper remedy to
test the validity of a criminal statute where it
affects
one
in
his
trade,
business
or
occupation.” To afford a businessman relief in
such a situation without having first to be
arrested
is
one
of
the
functions
of
the
[20]
declaratory judgment procedure.
We
agree
with
the
circuit
court
that
the
affidavits
submitted by plaintiff articulate
concrete risks of violations of the PWA as a
result of allegedly random changes to PWA rates,
the lack of definition of PWA projects and the
absence
of
PWA
statutory
definitions
for
statutory language that may be material to
enforcement of the criminal sanctions.
Further, we agree with the circuit court’s conclusion that
“the risks of enforcement of the statute together with the
19
MCL 408.557.
20
Strager v Wayne Co Prosecuting Attorney, 10 Mich App
166, 171; 159 NW2d 175 (1968)(citations omitted).
13
asserted character of the potential for violations of the
PWA, present a justiciable controversy.
Plaintiff’s affidavits establish precisely the kind of
controversy that the declaratory judgment rule was intended
to cover.
IV
Conclusion
We reverse the Court of Appeals denial of declaratory
relief
and
remand
to
the
Court
of
Appeals
for
reconsideration and resolution of defendants’ appeal and
plaintiff’s cross-appeal on the merits.
Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
ASSOCIATED BUILDERS AND CONTRACTORS,
SAGINAW VALLEY AREA CHAPTER,
Plaintiff-Appellant,
v
No. 124835
KATHLEEN M. WILBUR, DIRECTOR OF THE MICHIGAN
DEPARTMENT OF CONSUMER & INDUSTRY SERVICES AND
PROSECUTING ATTORNEY,
Defendants-Appellees,
and
MICHIGAN STATE BUILDING & CONSTRUCTION
TRADES COUNCIL,
Intervenor/Defendant/Appellee,
and
MICHIGAN CHAPTER OF THE NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION, INC., a Michigan
Corporation, MICHIGAN MECHANICAL CONTRACTORS
ASSOCIATION, a Michigan Corporation, and
MICHIGAN CHAPTER OF SHEET METAL AIR CONDITIONING
CONTRACTORS NATIONAL ASSOCIATION, a Michigan Corporation,
Intervenors/Defendants/Appellees,
and
MICHAEL D. THOMAS, Saginaw County
Prosecuting Attorney,
Intervenor/Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I
prefer
to
grant
leave
to
appeal
therefore, I must respectfully dissent.
in
this
case;
Determining that
plaintiff may bring an action for declaratory judgment may
have ramifications far beyond the prevailing wage act, MCL
408.551
et seq., and I believe that deciding this case
without full briefing from the parties and interested amici
is not prudent.
to
fully
Therefore, I would prefer the opportunity
explore
the
consequences
of
today’s
before issuing an opinion.
Michael F. Cavanagh
Marilyn Kelly
2
decision
2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
