author: R. M. Maher, P.J.

text:
    NATIONAL UNION OF POLICE OFFICERS LOCAL 502-M, AFL-CIO v WAYNE COUNTY BOARD OF COMMISSIONERS
    Docket No. 78-2800.
    Submitted June 8, 1979, at Detroit.
    Decided October 15, 1979.
    Gary McKeon, a Wayne County deputy sheriff, was convicted of intentionally pointing a firearm at another person. A sheriff’s trial board found that he had violated departmental rules and recommended a 20-day suspension, psychiatric evaluation, additional training and a transfer to a division of the department in which he would be without police powers for nine months. These recommendations were adopted by the sheriff. McKeon and his union, National Union of Police Officers Local 502-M, AFL-CIO, appealed to the Voluntary Labor Arbitration Tribunal pursuant to a collective bargaining agreement and the matter went to arbitration. The arbitrator affirmed the conviction, upheld the suspension, overturned the orders for psychiatric evaluation and additional training and ordered McKeon transferred back to his original division in 4-1/2 months. The sheriff complied with the arbitration award except that he refused to reassign McKeon to his former division where he could exercise law enforcement powers. The union and McKeon petitioned for a writ of mandamus seeking an order compelling the sheriff and the Board of Commissioners for Wayne County to comply fully with the arbitrator’s award and to restore McKeon’s law enforcement powers. The petition was denied, Wayne Circuit Court, Irwin H. Burdick, J. Plaintiffs appeal. Defendants contend that the constitution and laws of Michigan vest the authority to grant law enforcement powers to deputies exclusively in the sheriff. Plaintiffs argue that the sheriff’s discretion is limited by the public employment relations act and by the terms of collective bargaining agreements concluded pursuant to the act. Held:

      References for Points in Headnotes
    [1] 70 Am Jur 2d, Sheriffs, Police, and Constables § 1.
    [2,12] 16 Am Jur 2d, Constitutional Law § 299.
    16A Am Jur 2d, Constitutional Law § 361.
    [3, 5] 70 Am Jur 2d, Sheriffs, Police, and Constables §§ 21, 26.
    [4] 70 Am Jur 2d, Sheriffs, Police, and Constables § 6.
    [6] 48A Am Jur 2d, Labor and Labor Relations § 1770.
    [7, 8] 48 Am Jur 2d, Labor and Labor Relations § 998.
    [9] 48 Am Jur 2d, Labor and Labor Relations §§ 983,1209.
    [10,11] 48A Am Jur 2d, Labor and Labor Relations § 1764.
    70 Am Jur 2d, Sheriffs, Police, and Constables § 6.

      1. A sheriff’s power to hire, fire and discipline deputies is limited by the public employees relations act and is not absolute.
    2. All terms and conditions of deputy employment are subject to collective bargaining and to any agreement resulting therefrom, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the constitution.
    3. The Legislature may limit a sheriffs power to hire, fire and discipline but the matter as to which of his deputies shall be delegated the powers of law enforcement is a matter entrusted to him by the constitution, is a matter exclusively within his jurisdiction and inherent in the nature of his office and may neither be infringed upon by the Legislature nor delegated to a third party.
    4. The legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement but remains vested exclusively in the sheriff. Therefore, the arbitrator exceeded his authority, under the bargaining agreement, by ordering the sheriff to restore McKeon’s law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so. The trial court properly denied plaintiffs’ petition for a writ of mandamus.
    Affirmed.
    1. Sheriffs and Constables — Peace Officers — Police Power — Executive Power — Preservation of Peace.
    A sheriff is a peace officer charged with enforcing the laws enacted by the Legislature under the state police power and it is his duty to wield the executive power for the preservation of the public peace.
    2. Constitutional Law — Sheriffs and Constables — Police Power — Subordinate Governmental Agencies — Delegation of Power.
    The powers and duties of a sheriff comprise a part of the police power of the state which may be delegated to subordinate governmental agencies, but being an inherent attribute of sovereignty they may not be otherwise delegated or bargained away.

      3. Constitutional Law — Sheriffs and Constables — Duties and Powers — Legislative Interference.
    The office of sheriff is a constitutional office with duties and powers provided by law; the Legislature may vary the duties of a constitutional office, but may not change the duties so as to destroy the power to perform the duties of the office.
    4. Sheriffs and Constables — Deputies — Appointment of Deputies — Sheriff’s Discretion — Rules and Regulations.
    A sheriff may appoint one or more deputy sheriffs at his pleasure and may revoke such appointments at any time; this statutory provision has been interpreted as giving him complete discretion in hiring and firing deputies and the power to establish rules and regulations for their conduct (MCL 51.70; MSA 5.863).
    5. Sheriffs and Constables — Constitutional Law — Law Enforcement — Office Administration — Deputies — Assignment and Duties.
    The office of sheriff was created by the constitution and a sheriff, as the chief law enforcement officer in a county, should not be hampered in the administration of his office by any agency or board as to the actual assignment of duties to be performed by a sheriffs deputy.
    6. Labor Relations — Public Employment Relations Act — Collective Bargaining — Constitutional Law — Wages and Hours — Statutes.
    A public employer is subject to the mandatory collective bargaining provisions of the public employment relations act and must bargain with regard to all subjects which may be included in the phrase wages, hours and other terms and conditions of employment unless bargaining would clearly interfere with those matters for which control is vested exclusively in the employer by the constitution (MCL 423.215; MSA 17.455[15]).
    7. Labor Relations — Collective Bargaining — Mandatory Subjects — Permissive Subjects — Illegal Subjects.
    Subjects for collective bargaining are classified as mandatory, permissive and illegal; the parties are required to bargain in good faith on mandatory subjects such as wages, hours and other terms and conditions of employment, although they need not reach agreement; the parties may bargain by mutual agreement on permissive subjects, but are not required to do so; as to illegal subjects, no contract provision is enforceable, although the parties are not forbidden to discuss such matters.

      8. Labor Relations — Collective Bargaining — Mandatory Subjects — Management Decisions — Employment Security.
    Wages, hours, and other terms and conditions of employment are mandatory subjects for collective bargaining and any matter which has a significant impact on these subjects or settles an aspect of the relationship between the employer and employees requires bargaining; management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security are not subjects of mandatory collective bargaining.
    9. Labor Relations — Collective Bargaining — Illegal Subject — Violation of Law.
    An illegal subject of collective bargaining is one which would result in an agreement that would be in violation of the law.
    10. Labor Relations — Sheriffs — Powers — Discretion — Public Employees Relations Act.
    A sheriff’s power to hire, fire and discipline deputies is not absolute; his discretion in these areas is limited by the public employees relations act.
    11. Labor Relations — Sheriffs — Deputies — Collective Bargaining — Terms and Conditions of Employment — Constitutional Law.
    The terms and conditions of deputy employment are subject to collective bargaining and to any agreement resulting therefrom, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the constitution.
    12. Labor Relations — Sheriffs — Deputies — Sheriff’s Powers — Sheriff’s Jurisdiction — Legislature — Constitutional Law.
    The Legislature may limit a sheriffs power to hire, fire and discipline deputies; however, the matter as ■ to which of his deputies shall be delegated the powers of law enforcement is a matter entrusted to him by the constitution, is exclusively within his jurisdiction, is inherent in the nature of his office and may neither be infringed upon by the Legislature nor delegated to a third party.

      Jenkins, Nystrom & Sterlacci, P.C. (by Dennis H. Nystrom and Stephen J. Hitchcock), for plaintiffs.

      Adam P. Angelas, for William Lucas, Sheriff of Wayne County.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   R. M. Maher, P.J.

Plaintiffs appeal as of right from the order of the Wayne County Circuit Court denying their petition for a writ of mandamus to compel defendants to comply with an arbitrator’s award by restoring plaintiff McKeon’s "police powers”.

Plaintiff Gary McKeon, a Wayne County deputy sheriff, was convicted on April 13, 1977, of intentionally pointing a firearm at another person, MCL 750.233; MSA 28.430. Subsequently, he was found by a sheriff’s trial board to have violated departmental rules. The board recommended that McKeon be suspended for 20 days; it further recommended that he undergo psychiatric evaluation and additional training. The board also recommended that McKeon be transferred to a division of the department in which he would be without "police powers” for a period of nine months. The sheriff adopted the trial board’s recommendations.

Pursuant to the collective bargaining agreement between plaintiff union and defendants, plaintiff McKeon appealed and the matter went to arbitration. The arbitrator affirmed the conviction on departmental charges and upheld the 20-day suspension, but overturned the order for psychiatric evaluation and additional training and ordered McKeon transferred back to his original division in 4-1/2 months rather than the 9 months recommended by the trial board and adopted by the sheriff. The sheriff complied with the arbitration award in all respects save one: he refused to reassign McKeon to his former division, where he would exercise law enforcement powers.

On November 21, 1977, plaintiffs filed their petition for a writ of mandamus in circuit court, seeking an order compelling the sheriff to comply fully with the arbitrator’s award and to restore McKeon’s law enforcement powers. Defendants filed an answer in opposition to the petition, asserting that the arbitrator was without authority to order the sheriff to restore McKeon’s powers as a peace officer. Briefs were submitted and a hearing held, and on June 8, 1978, the court filed a written opinion denying plaintiffs’ petition.

Defendants argued below and on appeal that the constitution and laws of the State of Michigan vest the authority to grant law enforcement powers to deputies exclusively in the sheriff. Plaintiffs, on the other hand, argue that the sheriff’s discretion is limited by the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. (hereafter PERA), and by the terms of collective bargaining agreements concluded pursuant to PERA.

The office of sheriff is established by Const 1963, art 7, § 4, which provides in part:

"There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law.”

The sheriff is a peace officer charged with enforcing the laws enacted by the Legislature under the police power, see 80 CJS, § 42, p 211. It is his duty to "wield * * * the executive power for the preservation of the public peace”. Scougale v Sweet, 124 Mich 311, 322; 82 NW 1061 (1900). See also White v East Saginaw, 43 Mich 567; 6 NW 86 (1880). Thus it may be said that the sheriff’s powers and duties comprise a part of the police power of the state, which may be delegated to subordinate governmental agencies or divisions, but may not be otherwise delegated or bargained away, being an inherent attribute of sovereignty. See People v Robinson, 344 Mich 353; 74 NW2d 41 (1955) (Smith, J., dissenting), 6 McQuillan, Municipal Corporations (3d ed), §§ 24.07, 24.37, pp 480-482, 552-553. In Michigan, the state’s duty of law enforcement for the protection of its citizens has been constitutionally delegated to the county in the person of the sheriff, Brownstown Twp v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976). The effect of this constitutional delegation of power was stated in Brownstown Twp as follows:

"The office of sheriff is a constitutional office with duties and powers provided by law. Const 1963, art 7, § 4, Labor Mediation Board v Tuscola County Sheriff, 25 Mich App 159, 162; 181 NW2d 44 (1970). When officers are named in the Constitution they have a known legal character. The Legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy the power to perform the duties of the office. Allor v Board of Auditors of County of Wayne, 43 Mich 76, 102-103; 4 NW 492 (1880). See Murfree, Law of Sheriffs, § 41, p 22.” 68 Mich App, at 247-248.

Among the powers provided to the sheriff by statute is the authority to appoint deputies, MCL 51.70; MSA 5.863:

"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time * * *.”

This statutory provision appears to give the sheriff complete discretion in hiring and firing deputies, and has been interpreted as giving him the power to establish rules and regulations for the conduct of deputies. Eaton County Deputy Sheriffs Ass’n v Eaton County Sheriff, 37 Mich App 427; 195 NW2d 12 (1971).

The issue before us in the instant case is the interrelationship between PERA, in particular § 15 thereof, and MCL 51.70; MSA 5.863. Section 15 of the public employee relations act, MCL 423.215; MSA 17.455(15), provides:

"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached. if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

Specifically, the question is whether the collective bargaining requirements of PERA impliedly authorize a sheriff to enter into a collective bargaining agreement empowering an arbitrator of employee grievances to modify the sheriff’s order reassigning a deputy to duties not involving law enforcement powers upon finding the deputy guilty of misconduct.

The effect of PERA on the sheriff’s discretion in hiring and firing his deputies was discussed by this Court in Labor Mediation Board v Tuscola County Sheriff 25 Mich App 159; 181 NW2d 44 (1970). In that case a deputy filed an unfair labor practices charge, claiming that he was fired because of union organizing activities. The Labor Mediation Board agreed and ordered the deputy reinstated to the same or a similar position with back pay. The sheriff offered to reinstate the deputy to a position as turnkey with the same wages, hours and benefits. The deputy refused, and appealed to the board, which ordered the sheriff to assign the deputy to road patrol duties. This Court held that in so ordering, the board exceeded the powers conferred on it by PERA. The Court noted that the office of sheriff was created by the constitution as the chief law enforcement officer of the county. As such, "he should not be hampered in his administration of the office by any agency or board as to the actual assignment of duties to be performed by a sheriffs deputy”. 25 Mich App, at 164. It should be noted that the Court did not quarrel with the board’s power to order reinstatement, but only prevented it from interfering with the sheriff’s discretionary powers. Although the case before us involves an arbitrator’s award rather than an order of the Labor Mediation Board, the effect in each case is the same: attempted interference, by an outside agency, with the sheriffs discretionary power over specific individual duty assignments within the sheriffs department. Moreover, the case at bar involves an arbitrator overruling the sheriffs decision not to delegate the powers conferred on him by the constitution to a subordinate who had been found guilty of misconduct involving use of a firearm.

The Supreme Court has repeatedly held that PERA controls conflicting statutory provisions, including, inter alia, charter provisions of a home rulé city and the teacher tenure act. Rockwell v Crestwood School District Board of Education, 393 Mich 616; 227 NW2d 736 (1975), Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974). However, in Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976), the Court refused to order the Recorder’s Court to submit the dismissal of a probation officer to binding arbitration under a collective bargaining agreement, finding that MCL 771.10; MSA 28.1140, providing a procedure for removal of a probation officer, was not superseded by PERA. There was no majority opinion, three justices finding that the more specific provision, MCL 771.10, controlled the more general provision, being § 15 of PERA, MCL 423.215; MSA 17.455(15), and one justice finding no conflict between the two statutes, thus making the procedure in MCL 771.10 the sole means of discharging a probation officer. Both the plurality and the concurring opinions, however, emphasized the danger of interference with the performance of the judicial function if a judge could be required by an arbitrator to continue the employment of a probation officer in whom he no longer had confidence.

In the recent case of Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978), the Court reiterated the holding that a public employer is subject to the mandatory collective bargaining provisions of PERA, even though the employer is an institution established by the Michigan Constitution. The employer must bargain with regard to all subjects which may be included in the phrase "wages, hours and other terms and conditions of employment”, MCL 423.215; MSA 17.455(15), unless bargaining would clearly interfere with those matters, control over which is vested exclusively in the employer by the constitution, CMU Faculty, supra. See also Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). The Court in CMU Faculty, supra, found that the system of evaluation used in selecting teachers for tenure and promotion was one of the terms and conditions of employment and further that is was not exclusively a matter of educational policy over which the board of regents of the university had control by constitutional mandate. See also Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568; 224 NW2d 672 (1974), holding that the number of employees per shift is a bargainable condition of employment, where it affects the safety of the employees and not merely the safety of the public at large.

The concept that some subjects might be beyond the scope of collective bargaining under PERA because they fall within the powers granted exclusively to the employer by the Michigan Constitution was first enunciated by the Supreme Court in Regents of the University of Michigan v Employment Relations Comm, supra. Relying on that opinion, this Court in Local 1383 of the International Ass’n of Firefighters, AFL-CIO v City of Warren, 89 Mich App 135; 279 NW2d 556 (1979), held unenforceable a provision in a collective bargaining agreement establishing criteria for promotion, on grounds that it conflicted with a civil service system established by vote of the people pursuant to 1935 PA 78, MCL 38.501 et seq.; MSA 5.3351 et seq. and Const 1963, art 11, § 6. The Court in Local 1383 reasoned that because adoption of the civil service system was specifically authorized by the constitution, to permit the parties to supersede its provisions through a collective bargaining agreement would be tantamount to modifying the civil service system without a vote of the people, as required by Const 1963, art 11, § 6. The Court in a footnote stated that its opinion did not prohibit bargaining on the subject, but only implementation of the agreement reached.

Matters which are proposed as subjects for collective bargaining are classified as mandatory, permissive and illegal subjects. The parties are required to bargain in good faith on mandatory subjects, although they need not reach agreement. The parties may bargain by mutual agreement on permissive subjects, but are not required to do so. As to illegal subjects, no contract provision thereon is enforceable, although the parties are not forbidden to discuss such matters. See Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53-56; 214 NW2d 803 (1974). Mandatory subjects are "wages, hours, and other terms and conditions of employment”, MCL 423.215; MSA 17.455(15). Any matter which has a significant impact on the subjects listed or "settles an aspect of the relationship between the employer and employees’ is a mandatory subject, except for "those management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security”. Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 492; 233 NW2d 49 (1975), quoting Allied Chemical & Alkali Workers v Pittsburgh Plate Glass Co, 404 US 157, 178; 92 S Ct 383; 30 L Ed 2d 341 (1971), and Fibreboard Paper Products Corp v National Labor Relations Board, 379 US 203, 223; 85 S Ct 398; 13 L Ed 2d 233 (1964) (Stewart, J., concurring). Illegal subjects are those which would result in an agreement which is in violation of the law, Detroit Police Officers Ass’n v Detroit, supra, 391 Mich 44, 54-55, fn 6.

Our Supreme Court has recognized in principle what might be called the exclusive powers doctrine: that there exist matters which are within the exclusive discretion of a public employer and are therefore outside the category of mandatory collective bargaining subjects. CMU Faculty, supra, U of M Regents, supra. The Court has not had occasion to decide, however, what matters are within the exclusive powers of an employer and, further, whether those matters are illegal, or merely permissive, subjects of bargaining. If the exclusive powers subjects are permissive, the employer may bargain with regard to them, but is not required to do so. If the employer and employees agree, an enforceable contract provision may be concluded which deals with the exclusive powers. If, however, such subjects are illegal, no agreement made regarding them is enforceable. See Detroit Police Officers Ass’n v Detroit, supra, 391 Mich, at 54-55. Conceivably, the exclusive powers of an employer could embrace both permissive and illegal subjects.

Based on the cases discussed above, we posit— with some trepidation — the following principles which we deem applicable to the case before us: First, the sheriffs power to hire, fire and discipline is not absolute. Rather, his discretion is limited by PERA. See CMU Faculty, supra. Second, all terms and conditions of employment are subject to collective bargaining and to any agreement resulting therefrom, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the constitution. See CMU Faculty, supra. See also Council No 23 v Recorder’s Court Judges, supra. Third, although the sheriffs power to hire, fire and discipline may be limited by the Legislature, the matter of which of his deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party, see Scougale v Sweet, supra, People v Robinson, supra, Labor Mediation Board v Tuscola County Sheriff, supra, Brownstown Twp v Wayne County, supra.

We therefore conclude that the legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement as authorized by PERA, but remains vested exclusively in the sheriff. This being so, the arbitrator exceeded his authority under the contract in ordering the sheriff to restore plaintiff McKeon’s law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so. Cf. Carmel Central School Dist v Carmel Teacher’s Ass’n, 76 Misc 2d 63; 348 NYS2d 665 (1973). The trial court therefore properly denied the petition for a writ of mandamus.

We are mindful of the fact that the parameters of the exclusive powers doctrine recognized in CMU Faculty, supra, have not been definitively established by the Supreme Court. We do not presume to undertake that task here, either in general terms or in terms of the sheriff’s powers only. There may well be other subjects within the exclusive power of the sheriff, but we do not reach the issue. We limit our holding to this: that the power to delegate the law enforcement powers entrusted to him by our constitution is vested exclusively in the sheriff, and may not be bargained away or interfered with by any agency or individual.

Affirmed. No costs, a public question being involved.

       The trial board, the arbitrator and the parties used the term "police powers” below, and the parties continue to do so on appeal. To avoid possible confusion with the state’s police power, however, we prefer to use the term "law enforcement powers”.

       The arbitration clause reads as follows:
      "In the event the Union concludes that a member has been unjustly punished or dismissed by a trial board, it may, within thirty (30) calendar days after receipt of the Judgment of the trial board, appeal such Judgment to arbitration as provided. The arbitrator shall review the cause of action and the unjustness of the punishment imposed based upon the record made before the trial board. No new testimony or evidence shall be received by the arbitrator, unless said testimony or evidence was unknown at the trial board. If the arbitrator decides that new evidence or testimony should be heard, he shall at his option take said evidence or testimony or refer the case back to the trial board. If the arbitrator decides that the punishment imposed was unduly harsh or severe under all circumstances, he may modify the findings and punishment accordingly, and his decision shall be final and binding upon the parties and the effective members.”
      Defendant alleges that the collective bargaining agreement was the result of compulsory arbitration under 1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq.

       This section was amended by 1978 PA 635, effective January 8, 1979, but no substantial change relevant to the issues herein was made by the amendment.

       The three dissenting justices also found no conflict between the statutes, but concluded that both the statutory pre-dismissal hearing and the post-dismissal contractual procedures could be utilized.


source: Caselaw Access Project

author: J. H. Gillis, P.J.

license: Public Domain

text:
    DANYO v GREAT LAKES STEEL CORPORATION
    Docket No. 78-3512.
    Submitted August 27, 1979, at Detroit.
    Decided October 15, 1979.
    Leave to appeal applied for.
    Plaintiff Terry Danyo and 57 others brought a class action against Great Lakes Steel Corporation, Allied Chemical Corporation, the City of Detroit and The Detroit Edison Company seeking declaratory and injunctive relief under the Environmental Protection Act, damages for common-law private nuisance, trespass and negligence and punitive damages, alleging that defendants had discharged pollutants into the air and operated their plants with such noise and vibration as to damage plaintiffs’ real and personal property and adversely affect the health of some class members. All named plaintiffs who are or were homeowners in the area asserted damage to their real property, although their claims varied as to time and amount. Most named plaintiffs asserted separate and distinct personal property claims covering a variety of items and asserted general claims for personal injuries, primarily to the eyes and respiratory system. Defendants moved for summary or accelerated judgment, attacking the class action device as inappropriate and, in addition and in the alternative: 1) moved for severance of the plaintiffs’ claims for injunctive relief with provision for a separate trial as to each defendant and separate from the trial of any damage claim; 2) moved for severance of all original named plaintiffs with regard to their damage claims with provision for separate pleadings and separate trials; and 3) the City of Detroit moved to join other industrial facilities that emit pollutants and contribute to the pollution in the area. Plaintiffs moved to certify the class. The Wayne Circuit Court, Theodore R. Bohn, J., denied defendants’ motions for severance of plaintiffs’ claims for injunctive relief from those for damages, denied dismissal of the class action, denied separate trials of the damage claims, denied the joinder of other defendants and certified the class, holding that the action was a proper and manageable class action. Defendants appeal by leave granted. Held:

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 7, 11, 12, 15, 17-22.
    [2] 59 Am Jur 2d, Parties §§ 188-191.

      1. The division of a lawsuit into separate trials is within the discretion of the trial judge but is an extraordinary remedy designed for selective application to those cases in which the convenience of the parties and the court or the avoidance of prejudice compels the deviation from traditional trial practices. The court’s discretionary power should be exercised only upon the most persuasive showing that the convenience of all parties and of the court require such drastic action or that prejudice to a party cannot otherwise be avoided than by separation.
    2. The court rule allowing the joining of third-party defendants does not grant an absolute right to join third parties but gives the trial court discretion to allow it. The trial court did not abuse its discretion in denying a motion to add third-party defendants because it would complicate the case and make it unmanageable. The court noted that the city would not be precluded from receiving contribution if the potential contributees were notified of the present action.
    Affirmed.
    1. Trial — Separate Trials — Discretion — Court Rules.
    The division of a lawsuit into separate trials is within the discretion of the trial judge but is an extraordinary remedy designed for selective application to those cases in which the convenience of the parties and the court or the avoidance of prejudice compels the deviation from traditional trial practices; the court’s discretionary power should be exercised only upon the most persuasive showing that the convenience of all parties and of the court requires such drastic action or that prejudice to a party cannot otherwise be avoided than by separation (GCR 1963, 505.2).
    2. Trial — Impleader — Discretion — Court Rules.
    The court rule allowing the joining of third-party defendants does not grant an absolute right to join third parties but gives the trial court discretion to allow it; a trial court does not abuse its discretion in denying a motion to add third-party defendants because it would complicate the case and make it unmanageable (GCR 1963, 204).

      Dietrich & Cassavaugh, P.C. (by Wm. Michael White), for plaintiffs.

      Hill, Lewis, Adams, Goodrich & Tait (by Douglas

      H. West), for defendant Great Lakes Steel Corporation.

      Butzel, Long, Gust, Klein & Van Zile (by Leslie W. Fleming), for defendant Allied Chemical Corporation.

      Fischer, Franklin, Ford, Simon & Hogg (by William C. Petter, Jr.), for defendant The Detroit Edison Company.

      Roger E. Craig, Corporation Counsel, and John F. Hathaway, Assistant Corporation Counsel, for defendant City of Detroit.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   J. H. Gillis, P.J.

This action was filed on March 23, 1973, by 58 named individual plaintiffs purportedly on behalf of a class of persons similarly situated. The individual plaintiffs live in the Del-ray area of the City of Detroit. This action is against four separate and distinct corporate entities, each individually conducting substantially different industrial operations in Wayne County. In addition to these defendants, numerous other industries operate facilities within or in close proximity to the described area.

In a three-count complaint, plaintiffs seek declaratory and injunctive relief pursuant to the Michigan Environmental Protection Act, MCL 691.1201 et seq.; MSA 14.528(201) et seq., individual damages against the four defendants for common-law private nuisance and/or trespass and/or negligence related to air pollution, and punitive damages. Basically, plaintiffs allege that the defendants have discharged various pollutants into the air and operated their industrial plants with such noise and vibration as to damage plaintiffs’ real and personal property and adversely affect the health of some class members.

All the named plaintiffs who are or were homeowners in the area assert claims for damage to their real property, although the claims vary widely as to tbe time and amount of damages. Most of the named plaintiffs have separate and distinct personal property claims covering a wide variety of items. Most named plaintiffs assert general claims for personal injuries, primarily injuries to the eyes and respiratory systems.

In 1973, the defendants, by way of motions for summary or accelerated judgment, attacked the class action device as being inapplicable to the present situation. In an opinion dated April 24, 1974, the trial court denied the motions without prejudice and permitted the suit to proceed tentatively as a class action during discovery and pretrial proceedings.

In 1976, the defendants renewed their prior motions to dismiss the class action and, in addition and in the alternative:

(a) moved for severance of the plaintiffs’ claims for injunctive relief with provision for a separate trial thereon as to each defendant and separate from the trial of any claim for damages;

(b) moved for severance of all original named plaintiffs with regard to their claims for damages with provision for separate pleadings and separate trials; and

(c) the City of Detroit moved to join approximately 17 other industrial facilities that emit pollutants and contribute to the pollution of the air in the Delray area. The plaintiffs moved for an order to certify the proposed class and for notice to the class.

In an opinion dated September 20, 1977, the lower court, finding the present case to be indistinguishable from that of Oakwood Homeowner’s Ass’n, Inc v Ford Motor Co, 77 Mich App 197; 258 NW2d 475 (1977), lv den 402 Mich 847 (1978), denied defendants’ motions for severance for trial purposes of plaintiffs’ claims for injunctive relief from those for damages, denied defendants’ motions for dismissal of the action as a class action particularly with respect to plaintiffs’ claims for damages, denied defendants’ motions for severance of all original named plaintiffs’ damages claims from one another (separate trials request) and denied the City of Detroit’s motion to join additional defendants. The lower court certified the class, holding that the action was a proper and manageable class action.

Defendants bring this interlocutory appeal from the order entered pursuant to that opinion by leave granted.

On appeal, the defendants seek: (1) dismissal of plaintiffs’ claims for damages on grounds of unmanageability or separate trial of each named plaintiff’s claim for damages; (2) separate trials as to each defendant with respect to the claims seeking injunctive relief; and (3) severance of the claims seeking injunctive relief from those seeking damages. Defendant City of Detroit seeks to join 17 additional defendants as third-party defendants. Defendants appear to concede the propriety of a class action as to the claim seeking injunctive relief.

Initially, we note that the issues presented with respect to defendants’ requests for relief numbers 1 and 2 above are identical to those presented to this Court in Oakwood Homeowner’s Ass’n, Inc v Ford Motor Co, supra. Furthermore, the facts in the present case are so similar to those in Oakwood as to be nearly congruent. Accordingly, Oak-wood is apposite. The lower court’s application of that case to resolve the present one was neither "clearly erroneous” nor an "abuse of discretion”. Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976), rev’d 405 Mich 148 (1979), Magid v Oak Park Racquet Club Associates, Ltd, 84 Mich App 522, 531; 269 NW2d 661 (1978).

The thrust of defendants’ briefs is their attack on the reasoning employed and the result reached in the majority opinion in Oakwood. Defendants seek to have this Court disregard the majority opinion in Oakwood and to accept the dissenting opinion there in deciding the present case.

Though this Court has that option, Hackett v Ferndale City Clerk, 1 Mich App 6; 133 NW2d 221 (1965), Warren v Parole Board, 23 Mich App 754, 758; 179 NW2d 664 (1970), State, ex rel Director of the Michigan Dep’t of Natural Resources v Chippewa Landing, 82 Mich App 37, 43; 266 NW2d 658 (1978), we choose to not exercise it. The majority opinion in Oakwood controls the instant litigation. Accordingly, those issues presented here which are identical to those presented and decided in Oak-wood will not be addressed.

The defendants raise an issue which, though presented to the Court in Oakwood, was neither addressed nor decided. That issue relates to the propriety of the denial of severance of the claims seeking injunctive relief from those for damages.

The division of a lawsuit into separate trials is a matter within the discretion of the trial judge. The pertinent court rule, GCR 1963, 505.2, provides:

"The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

The "extraordinary” provisions of this rule are "designed for selective application to those cases in which the convenience of the parties and the court or the avoidance of prejudice compels such deviation from our traditional trial practices”. Peasley v Lapeer Circuit Judge, 373 Mich 222, 226; 128 NW2d 515 (1964). The court’s discretionary power "should be exercised only upon the most persuasive showing that the convenience of all parties and of the court require such drastic action or that prejudice to a party cannot otherwise be avoided than by such order of separation”. Osgerby v Tuscola Circuit Judge, 373 Mich 237, 241; 128 NW2d 351 (1964). There was no such showing here. The denial of severance was not the product of bias, passion, perversity of will or illogic. Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959).

The defendant City of Detroit challenges the denial of its motion to add third-party defendants. In April, 1976, the City moved to add 17 other alleged industrial polluters contending that the claims made against the defendants here could likewise be made against all the proposed third-party defendants. GCR 1963, 204. The city contended that the other alleged polluters were the real parties liable for any injuries sustained by the plaintiffs and, alternatively, that those entities were liable and subject to contribution to the original defendants should judgments be entered against the original defendants. The lower court denied the motion for the reason that to do otherwise would complicate the case and make it unmanageable.

GCR 1963, 204 does not give a defendant an absolute right to join third-party defendants, even in circumstances where the third party is or may be liable to the defendant within the wording of the rule. Rather, the allowance of third-party practice rests within the sound discretion of the trial judge. Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 325; 174 NW2d 797 (1970), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 507, (1978 Supp, p 227).

Complication of the trial is a recognized basis for discretionary denial of impleader. Doall v Michigan Consolidated Gas Co, 23 Mich App 454; 179 NW2d 26 (1970). Denial of impleader in the present case for the reason that to add the parties would make the case "unmanageable” was within the lower court’s discretion. Such denial was without error.

We note that the effect of the denial of impleader is not to prevent the named defendants from enforcing their substantive right to contribution against the parties^sought to be added. MCL 600.2925a; MSA 27A.2925(1) provides in relevant part:

"(1) * * * when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
"(5) A tort-feasor who satisfies all or part of a judgment entered in an action for injury or wrongful death is not entitled to contribution if the alleged contributee was not made a party to the action and if a reasonable effort was not made to notify him of the commencement of the action. Upon timely motion, a person receiving such notice may intervene in the action and defend as if joined as a third party.”

The statute is properly construed as denying contribution against any contributee not made a party to the action nor notified of its commencement. Recovery of contribution may still be had in a separate action if the contributee was notified of the first action that resulted in a judgment against the tortfeasor seeking contribution. MCL 600.2925c; MSA 27A.2925(3), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed, 1978 Supp), § 4a, p 228.

Affirmed. Costs to appellees.


author: Danhof, C.J.

text:
    BOOTH NEWSPAPERS, INC v REGENTS OF THE UNIVERSITY OF MICHIGAN
    Docket No. 78-4262.
    Submitted June 8, 1979, at Lansing.
    Decided October 15, 1979.
    The Board of Regents of the University of Michigan resolved, at a public meeting, to discuss certain topics in closed session, including a legal opinion of the University’s counsel concerning the Open Meetings Act and certain portions of an annual audit report dealing with misuse or misappropriation of funds. Three months later, Booth Newspapers, Inc., doing business as the Ann Arbor News, brought an action alleging that the Board of Regents had met several times in closed sessions contrary to the Open Meetings Act and seeking temporary and permanent injunctions prohibiting any further closed session discussions of the legal opinion and audit reports. A temporary injunction was denied. The Board of Regents alleged that the attorney’s opinion and the audit report were exempt from disclosure under both the Open Meetings Act and the Freedom of Information Act. The Washtenaw Circuit Court, Edward D. Deake, J., granted summary judgment for the Board of Regents, and plaintiff appeals. Held:

    1. The Freedom of Information Act, which exempts from disclosure materials subject to the attorney-client privilege, and the Open Meetings Act, which exempts consultation with counsel regarding specific pending litigation, are statutes which are co-equal in rank. The written opinion of counsel is material which need not be disclosed under the Freedom of Information Act and is therefore also exempt from the requirements of the Open Meetings Act.
    2. The Board of Regents’ contention that the audit reports in question contain information of a personal nature which if disclosed could produce an unwarranted invasion of an individual’s privacy is in the nature of an affirmative defense, and the burden of proving that defense is on the defendant. Because the complaint stated a claim upon which relief could be granted, the Board of Regents was not entitled to summary judgment on the pleadings alone.

      References for Points in Headnotes
    [1, 3] 66 Am Jur 2d, Records and Recording Laws §§ 23, 27, 29, 30.
    [2] 66 Am Jur 2d, Records and Recording Laws § 44.
    [4] 61 Am Jur 2d, Pleadings §§ 229, 230.

      3. The case should be remanded and, upon motion for summary judgment by either party, the defendant should submit affidavits supporting specific allegations of why disclosure of the audit reports would lead to an invasion of privacy. The trial court may, in its discretion, examine the reports in camera or receive testimony.
    Remanded.
    1. Attorney and Client — Freedom of Information Act — Opinion of Counsel — Statutes.
    An opinion of counsel, addressed to a client, is within the common-law attorney-client privilege; a written opinion of counsel to a public body is material which is exempt from disclosure under the Freedom of Information Act (MCL 15.243[l][h]; MSA 4.1801[13][l][h]).
    2. Records — Access to Public Records — Burden of Proof.
    A public body which has denied access to its records bears the burden of sustaining that denial.
    3. Records — Freedom of Information Act — Exemption from Disclosure — Affirmative Defense — Court Rules.
    A defendant public body’s contention that audit records sought by a plaintiff under the Freedom of Information Act contain information which could produce a clearly unwarranted invasion of an individual’s privacy if disclosed and that the records are therefore exempt from disclosure is in the nature of an affirmative defense; such a defense need not be anticipated by the plaintiff in the complaint nor is the plaintiff ordinarily obligated to respond to such a defense when raised by the defendant (GCR 1963, 111.7).
    4. Judgment — Summary Judgment — Pleadings — Court Rules.
    A defendant is not entitled to judgment on the pleadings alone where the plaintiff has stated a claim upon which relief could be granted; resolution of an action on the grounds that there exists no genuine issue of material fact requires a showing of a party’s inability to provide any factual basis for its legally sufficient claim or defense, and pleadings alone cannot serve this function (GCR 1963, 117.3).

      Burke, Rennell & Hood, for plaintiff.

      Roderick K. Daane, for defendants.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Danhof, C.J.

At a public meeting of the Board of Regents of the University of Michigan (the Board) on June 16, 1977, it was resolved to discuss in closed session certain topics, which were set forth in the minutes of the meeting:

"(1) To consider with counsel for the University his opinion, dated June 15, 1977, concerning the Michigan Open Meeting Act, which opinion is exempt from disclosure under Section 13(l)(h) of the Michigan Freedom of Information Act.
"(2) To consider negotiations for the purchase or lease of real property, there being no option to purchase or lease presently in effect with respect to the property in question.
"(3) To consider the following material exempt from disclosure pursuant to Section 13(l)(a) of 76 PA 442, the Michigan Freedom of Information Act:
"(a) Lists of proposed salaries of named Executive Officers, Deans, and certain Directors.
"(b) A document evaluating the performance of a deanship, identifying evaluated staff members.
"(c) A compilation of candidates for the position of Vice-President for Academic Affairs, including candidates, applications and Search Committee advice.
"(d) The faculty promotion list.
"(e) Those portions of the annual report of the University Internal Audit Department dealing with investigations of misuse or misappropriation of funds and related or similar matters with potential for damage to individual reputations or to the public interest if disclosed.”

On September 14, 1977, the plaintiff filed a complaint in the circuit court, alleging that the Board had met on numerous occasions in closed sessions not permitted by the Open Meetings Act (OMA), MCL 15.261 et seq.; MSA 4.1800(11) et seq., to discuss topics including a "legal opinion regarding closed sessions” and "audit reports and procedures”. The plaintiff sought temporary and permanent injunctions against the Board prohibiting it from further closed session discussions of the topics set forth in the complaint.

Temporary injunctive relief was denied. The plaintiff moved for summary judgment under the provisions of GCR 1963, 117.2(2) and (3), attaching to the motion the affidavit of its reporter. The Board’s answer to the motion alleged that the pleadings were incomplete, that the Board believed that valid legal defenses to the plaintiffs possessive claim existed and that there were between the parties genuine issues of material fact making summary judgment for the plaintiff inappropriate. The affidavit of the Secretary of the Board was submitted with the Board’s answer.

Several briefs were filed, including one from the Board setting forth the minutes of the June meeting, supra. The Board’s answer to the complaint admitted that it had met in closed session to consider the written opinion of counsel regarding the OMA, but maintained that that opinion and the audit reports were exempted from open discussion by § 8(h) of the OMA because both were exempted from disclosure under the Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq. The motion resulted in entry of summary judgment for the Board on both of the plaintiff’s claims. This appeal is brought from that judgment and concerns only those two claims resolved therein.

The OMA provides, in pertinent part:

"(1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.
"(2) All decisions of a public body shall be made at a meeting open to the public.” MCL 15.263(1), (2); MSA 4.1800(13)(1), (2).
"A public body may meet in closed session only for the following purposes:
"(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only when an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.
"(h) To consider material exempt from discussion or disclosure by state or federal statute.” MCL 15.268(e), (h); MSA 4.1800(18)(e), (h).

The Board’s position that it was privileged to close its meetings for discussion of "material exempt from discussion or disclosure by state or federal statute” was based on the FOIA, particularly those portions which provide:

"(1) A public body may exempt from disclosure as a public record under this act:
"(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
"(h) Information or records subject to the attorney-client privilege.” MCL 15.234(l)(a), (h); MSA 4.1801(13)(l)(a), (h).

The parties seem to agree that the FOIA is the sole basis of the Board’s defense. Thus there is created within this action for relief under the OMA a practically separate suit in which the central issues arise under the FOIA.

A public body is privileged to retire to closed session to discuss materials exempt from disclosure under the FOIA, which, in § 13(h), exempts from disclosure materials held by a public body and "subject to the attorney-client privilege”. The opinion of counsel, addressed to a client, is within the common law privilege. See In re Bathwick’s Estate, 241 Mich 156; 216 NW 420 (1927). The OMA contains an apparently more restrictive exemption, which would allow closed session consultation with counsel only regarding "specific pending litigation”. MCL 15.268(e); MSA 4.1800(18)(e). The plaintiff argues that this "specific” exemption to the OMA open meeting requirements should prevail over the "general” attorney-client exemption appropriated from the FOIA. We cannot agree with this contention. The OMA’s exemption of attorney consultation and its exemption of discussions regarding materials exempt from disclosure under other statutes have been assigned equal rank by the drafter of the statute. The written opinion of counsel is "material” which need not be disclosed under the FOIA and is therefore exempt from the open meeting requirements of the OMA as well.

The parties to this appeal have debated extensively the meaning of the FOIA provision exempting from disclosure information which, if disclosed, could produce a "clearly unwarranted invasion of an individual’s privacy”. The noticeably hypothetical tone of the arguments and the plaintiff’s repeated contention that the Board brought forth in the lower court no "evidence” in support of its exemption claim have revealed a substantial problem in summary judgment resolution of FOIA (and, in this case, OMA) actions. Our resolution of these problems makes review of the trial court’s decision on the merits both unnecessary and inappropriate.

One of the Board’s lower court briefs recited the minutes of the June 16, 1977, board meeting, including the Board’s description and assessment of the audit reports at issue in this litigation. This description was not pleaded by the Board as its defense; however, both the parties and the court apparently regarded it as having been alleged in answer to the plaintiffs complaint.

The Board acknowledges that a public body that has denied access to its records bears the burden of sustaining its denial in court. Accordingly, it has been held that in order to state a cause of action under the Federal Freedom of Information Act (FOIA Federal) a complaint need not allege that the material sought is not the subject of a statutory exemption. Television Wisconsin, Inc v NLRB, 410 F Supp 999 (D Wis, 1976). Exemption is a defense in actions under the FOIA.

Any defense posture which "by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim set forth in the plaintiffs complaint” is in the nature of an affirmative defense. GCR 1963, 111.7. The Board’s contentions that the audit reports in question contained "information of a personal nature” which could produce a "clearly unwarranted invasion of an individual’s privacy” if disclosed to the public asserts such "other affirmative matter” and falls quite comfortably within this definition. A plaintiff need not anticipate an affirmative defense in its complaint and ordinarily is not obligated to respond to such a defense when it is raised by an opponent. Simonson v Michigan Life Ins Co, 37 Mich App 79; 194 NW2d 446 (1971), GCR 1963, 110.1. An affirmative defense cannot succeed unless the matters upon which it rests are proved. The burden of producing evidence and establishing these facts rests upon the defendant. Pollack v Oak Office Building, 7 Mich App 173; 151 NW2d 353 (1967).

A plaintiff asserting a FOIA claim faces a disadvantage seldom encountered in other litigation, in that necessarily only the public body holding the information can speak confidently regarding the nature of the material and the circumstances of its preparation and use which might support an exemption defense. The allocation of the burdens of pleading and proof described in the preceding paragraphs is therefore especially well suited for application to FOIA actions.

Entry of summary judgment in favor of a party opposing an opponent’s motion therefor is controlled by GCR 1963, 117.3, which provides:

".3 Motion and Proceedings Thereon. A motion based upon sub-rule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. The affidavits submitted by either party shall be governed by the provisions of sub-rules 116.4, 116.5, and 116.6. Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor.”

This rule authorizes summary judgment only if "the pleadings show that any party is entitled to judgment as a matter of law” or if the "affidavits, together with the pleadings, depositions, admissions and documentary evidence” show that there exists between the positions of the parties no genuine issue of material fact.

The complaint in this action stated a claim upon which relief could be granted; the plaintiff was not required to reply to the Board’s affirmative defense of exemption. Therefore, the Board was not entitled to judgment on the pleadings alone. Cf., Neada v State Farm Life Ins Co, 324 Mich 233; 36 NW2d 904 (1949).

Resolution of an action on the grounds that there exists no genuine issue of material fact requires a showing of a party’s inability to provide any factual basis for its legally sufficient claim or defense. Carry v Consumers Power Co, 64 Mich App 292; 235 NW2d 765 (1975), Smith v Woronoff, 75 Mich App 24; 254 NW2d 637 (1977). Pleadings alone cannot serve this function. Our inspection of the record finds it devoid of any indication outside the pleadings that the audit report might be the subject of a valid exemption under the FOIA. If the Board desired summary disposition of its affirmative defense, it was incumbent upon it to offer to the trial court affidavits or other materials sufficient to show that failure of its defense was factually impossible. In the absence of such an offer by the Board, the summary judgment cannot stand.

If it is clear that courts cannot simply accept government allegations that material sought in FOIA litigation is protected by statutory exemption, it is equally apparent that disclosure of the material in order to prove the defense would defeat the purposes of exemption altogether. Whether FOIA exemption claims are resolved in summary judgment proceedings or ordinary trials, the unusual nature of the FOIA action requires a certain amount of creativity in solving proof and procedure difficulties.

One device developed in FOIA Federal litigation and employed in both summary judgment and trial settings is in camera inspection of the materials under consideration. When a substantial amount of information is sought, this procedure can place a sizable burden on the trial court. See Environmental Protection Agency v Mink, 410 US 73, 92-93; 93 S Ct 827; 35 L Ed 2d 119 (1973). It has also been observed that in camera inspection avoids the adversarial process upon which judicial dispute resolution has come to rely, forcing the, trial court to take upon itself the evaluation of the government’s claims without benefit of "criticism and illumination by a party with the actual interest in forcing disclosure”. Vaughn v Rosen, 157 US App DC 340, 345; 484 F2d 820, 825 (1973).

A second method which has found considerable use in the Federal courts is the requirement that the body seeking to sustain its secrecy submit affidavits describing the disputed materials in sufficient detail to allow effective argument by the seeker and a fully informed decision by the court. See, e.g., Vaughn v Rosen, supra, EPA v Mink, supra, Mobile Oil Corp v Federal Trade Comm, 406 F.Supp 305 (SD NY, 1976), Mead Data Central, Inc v United States Dept of Air Force, 184 US App DC 350; 566 F2d 242 (1977). The affidavits need not reveal the information the government claims is exempt from disclosure, but neither may an acceptable affidavit merely restate the legal conclusions contained in the government’s answer. In Vaughn, supra, the Court stated:

"The problem of assuring that allegations of exempt status are adequately justified is the most obvious and the most easily remedied flaw in current procedures. It may be corrected by assuring government agencies that courts will simply no longer accept conclusory and generalized allegations of exemptions, such as the trial court was treated to in this case, but will require a relatively detailed analysis in manageable segments. An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document.” 157 US App DC at 346-347; 484 F2d at 826-827.

In Mead Data, supra, it was held that the government could not have summary judgment unless it provided:

"a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” 184 US App DC at 359; 566 F2d at 251.

Testimony is a third device which may be added to affidavit presentations and in camera inspection in apprising the court of the validity of the government’s claim. Mink, supra.

In the case at bar, there is no indication that the Board could not have justified its exemption claim without disclosing so much of the information contained in the audit reports as to endanger the privacy of the individuals the Board rightfully sought to protect. The defendant might have started its defense with more specific (but anonymous) allegations in its answer, stating the reasons why an invasion of privacy would result from disclosure of the reports. In offering to show the factual basis for its claim, the Board could have supplied affidavits supporting those allegations. The trial court, in turn, could have exercised its discretion in proceeding to take testimony or examine the reports in camera.

On remand, either the plaintiff or the defendant may move for summary judgment. If the motion is submitted by the plaintiff, the trial court may exercise its discretion and choose whether to require a cross motion from the Board. Summary judgment shall not issue for the Board unless the affidavits submitted (or the testimony or in camera inspection of the reports, if any) show that the Board is entitled to judgment.

Remanded for proceedings not inconsistent with this opinion. No costs, a public question.

       The other topics alleged in the complaint to have been illegally discussed in closed sessions were salaries of executive officers and deans, the "evaluation of a deanship”, review of applications for a university vice-presidency, salaries of employees of the university and faculty appointments. Only the opinion of counsel and the audit reports are at issue in this appeal.

       A second count sought a declaration that certain exemptions to the OMA and the Freedom of Information Act, infra, were unconstitutionally vague and constituted a prior restraint on the plaintiffs First Amendment rights. This issue is not before the Court in this appeal.

       "Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
      "(2) the opposing party has failed to state a valid defense to the claim asserted against him,
      "(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.”

       "Robert Cummins, being first duly sworn, deposes and says that:
      "1. He is presently employed as a reporter for The Ann Arbor News in the City of Ann Arbor, Michigan.
      "2. In his capacity as a reporter he has been assigned to cover meetings of the Board of Regents of The University of Michigan, and is well acquainted with the meetings that have been held by Defendant Regents during the preceding six months.
      "3. The Regents have met, from time to time, in closed session to discuss and deliberate upon topics, some of which were exempt from disclosure under the Open Meetings Act, and some of which were not exempt under the Open Meetings Act.
      "4. Specifically, The Regents met on one occasion in June to discuss and to deliberate upon topics that are set forth in Plaintiffs Complaint.
      "5. That should the Regents be permitted to continue to meet in closed session to discuss all or a portion of the topics that are raised in Plaintiffs Complaint, the public will be denied information that had previously been available to it, and to which it is now entitled to have under the provisions of the Open Meetings Act.
      "6. I have examined the Plaintiffs Brief that had previously been submitted to this court in support of Plaintiffs request for injunctive relief, and believe the factual allegations asserted therein to be true.
      "7. If called as a witness in this matter, I can testify competently to the facts contained with Plaintiffs Motion for Summary Judgment and Plaintiff’s Brief in support of injunctive relief.”

       "Richard L. Kennedy, being first duly sworn, deposes and says that he is, and at all times material to the above-entitled action has been, Secretary of The Regents of The University of Michigan, in which capacity he has attended all meetings of the governing Board of Regents since April 1, 1977, and has kept minutes thereof, including meetings which were open to the general public and those which were closed to the general public. Deponent says that for the months since the effective date of the Open Meetings Act and the Freedom of Information Act, the topics considered by the Board of Regents in closed session, month by month, were:
      "April—Collective bargaining strategy
      "May—The purchase of real property prior to the time an option to purchase same was obtained
      Collective bargaining strategy
      "June—Purchase of real property prior to the time an option to purchase same was obtained
      Opinion of counsel concerning Open Meetings Act
      A document evaluating the performance of a Deanship, identifying evaluated staff members
      A list of proposed salaries of named Executive Officers, Deans, and certain Directors
      "July—The purchase of real property prior to the time an option to purchase same was obtained
      "August—The Board of Regents did not meet in August.

        "September—The purchase of real property prior to the time an option to purchase same was obtained
      Collective bargaining strategy
      "October—No closed meeting.
      "Deponent further says that no topics other than those enumerated above were considered by the Regents in closed session during the months of April through October, 1977, inclusive.”

       This congruence of issues may be more apparent than real. The FOIA provides at MCL 15.244; MSA 4.1801(14) for the separation of exempt materials from those which must be disclosed. Strict application of FOIA exemption rules to an OMA question would prohibit a public body from discussing portions of a document in private while allowing closed session consideration of other parts. The impact of such a division on the decisional process is apparent. In such a case, FOIA disclosure of written materials might be wider in scope than the public discussion requirements of the OMA. The posture of this action makes the resolution of this issue impracticable at this time.

       "Those portions of the annual report of the University Internal Audit Department dealing with investigations of misuse or misappropriation of funds and related or similar matters with potential for damage to individual reputations or to the public interest if disclosed.”

       At oral argument before this Court, counsel for the Board stated that this description, never countered by the plaintiff, formed the sole basis of the lower court judgment.

       "The court shall determine the matter de novo and the burden is on the public body to sustain its denial.” MCL 15.240; MSA 4.1801(10).
      This principle is applied under the FOIA-Federal as well. See 5 USC 552(a)(4)(B); Robles v Environmental Protection Agency, 484 F2d 843 (CA 4, 1973). Public records are "prima facie discloseable” to any person who makes an adequate request. Kent Corp v NLRB, 530 F2d 612 (CA 5, 1976). See also MCL 15.233; MSA 4.1801(3).

       We include in the "pleadings” the defendant’s recitation of the Board’s open meeting description of the audit reports.

       In practice, the procedures outlined in this opinion will likely make the hearing on a motion for summary judgment and the trial proper nearly indistinguishable. Where, as here, the exemption is for all practical purposes proved when the nature of the disputed material is established on motion for summary judgment, there will seldom be reason to move to trial on the merits. Lest the plaintiffs obvious inability to obtain summary jdugment on the strength of affidavits it can produce leave the initiative in the hands of possibly unwilling public bodies, we recommend to the trial courts their power to order submission of cross-motions for summary judgment. See Congregation B’nai Sholom v Martin, 382 Mich 659; 173 NW2d 504 (1969).


author: Per Curiam.

text:
    WAYNE COUNTY PROSECUTOR v WAYNE COUNTY BOARD OF COMMISSIONERS WAYNE COUNTY TREASURER v WAYNE COUNTY BOARD OF COMMISSIONERS WAYNE COUNTY CLERK v WAYNE COUNTY BOARD OF COMMISSIONERS WAYNE COUNTY REGISTER OF DEEDS v WAYNE COUNTY BOARD OF COMMISSIONERS WAYNE COUNTY DRAIN COMMISSIONER v WAYNE COUNTY BOARD OF COMMISSIONERS
    Docket Nos. 43365, 43676, 43488, 43720, 43569.
    Submitted June 20, 1979, at Detroit.
    Decided October 15, 1979.
    Plaintiffs, the prosecuting attorney, treasurer, clerk, register of deeds, and drain commissioner of Wayne County, brought actions for declaratory judgment and injunctive relief against the Wayne County Board of Commissioners, the Wayne County Board of Auditors, the Wayne County Civil Service Commission and the "Task Force” (a group of nonelected individuals designated by the Ways and Means Committee of the Wayne County Board of Commissioners). These actions sought to enjoin defendants from instituting reductions in the 1978-79 budget of each plaintiff equivalent to a 15% reduction in their personnel costs. Plaintiffs urged that the reduced budget levels would render them unable to carry out their statutorily mandated functions. The Wayne Circuit Court, Allen C. Miller, J., found, after hearing extensive proofs, that the fixed percentage scheme adopted by defendants to compute the reductions was arbitrary and capricious because it did not take into consideration priorities between state mandated and other functions. The trial court further found that if the adopted budgets were implemented all of the plaintiffs, except the register of deeds, could fulfill their statutory duties. Plaintiffs, except plaintiff register of deeds, appeal. Defendants cross appeal, alleging that the separation of powers doctrine precludes judicial review of their budgetary decisions. Defendants also appeal from the order of injunctive relief issued with respect to plaintiff register of deeds. Held:

      References for Points in Headnotes
    [1, 3] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 192.
    [2, 4, 5] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 579 et seq., 581.
    [6] 5 Am Jur 2d, Appeal and Error § 772.
    [7, 8, 9] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 581.

      1. Judicial review of appropriation decisions of county boards of commissioners is limited in scope, but such review will be undertaken where a county board fails to perform the duties imposed by the legislature or state constitution.
    2. County boards of commissioners must appropriate sums sufficient to allow county executive officers to carry out the duties and obligations which have been statutorily imposed upon them by the Legislature.
    3. Discretionary appropriations by county boards of commissioners are subject to judicial review only where the action of the county board is so arbitrary and capricious as to evidence a total lack of discretion.
    4. The uniformly applied fixed percentage method of budget reduction adopted by the county board of commissioners was not arbitrary and capricious, since the record demonstrates that the board believed that all funded services were important enough to be treated equally.
    5. County boards of commissioners must appropriate the funds necessary to permit county executive officers to carry out their statutorily mandated duties at a serviceable level. A serviceable level is not the optimal level, but is rather the level of funding which permits the duties to be carried out in a barely adequate manner.
    6. Review of the trial court’s findings is de novo. The trial court’s findings will not be disturbed unless the Court of Appeals is convinced that it would have arrived at a different result had it been in the position of the trial court.
    7. The reductions in the budgets of the clerk, treasurer and drain commissioner did not result in funding below the serviceable level, since such reductions could be achieved by the elimination of unfilled previously budgeted positions.
    8. The reduction in the budget of the register of deeds resulted in funding below the serviceable level, since such reduction would require elimination of six filled positions in a department that was also chronically behind in its duties and would thereby cause matters in that department to fall further behind.
    9. The reduction in the budget of the prosecuting attorney resulted in funding below the serviceable level. Such reduction would require the elimination of 18 assistant prosecuting attorney positions in a department that is already carrying one of the highest caseloads per assistant prosecutor of any major prosecuting staff in the country and that is already losing some cases because of excessive caseloads of its assistant prosecutors.
    Affirmed in part, reversed in part and remanded.
    1. Counties — Appropriations — Judicial Review.
    Judicial review of decisions of county boards of commissioners relative to appropriations is limited in scope, but such review will be undertaken where a county board fails to perform the duties imposed by the Legislature or state constitution.
    2. Counties — Appropriations — Statutory Obligations.
    County boards of commissioners must appropriate sums sufficient to allow county executive officers to carry out the duties and obligations which have been statutorily imposed upon them by the Legislature.
    3. Counties — Appropriations — Discretionary Appropriations — Judicial Review.
    Judicial review of discretionary decisions on appropriations of county boards of commissioners will not be undertaken except where the action taken by the county board is so capricious and arbitrary as to evidence a total failure to exercise discretion.
    4. Counties — Appropriations — Budgetary Reductions — Method.
    The reduction of the budgets of all county departments by a uniformly applied fixed percentage of each department’s personnel costs is not an arbitrary and capricious act by a county board of commissioners where the record demonstrates that the board believed that all the funded services were important enough to be treated equally.
    5. Counties — Appropriations — Judicial Review.
    County boards of commissioners must appropriate the funds necessary to permit county executive officers to carry out their statutorily mandated duties at a serviceable level, that being the level of funding which permits the duties to be carried out in a barely adequate manner at least.

      6. Appeal and Error — Declaratory Judgments — County Appropriations — De Novo Review.
    The Court of Appeals reviews de novo actions seeking a declaratory judgment and will not disturb the findings of the trial court unless it is convinced that it would have arrived at a different result had it been in the position of the trial court.
    7. Counties — Appropriations — County Clerk — County Treasurer — County Drain Commissioner.
    Reductions by a county board of commissioners of the budgets of the clerk, treasurer and drain commissioner did not result in insufficient funding where said budgetary cuts could be achieved by the elimination of positions which had been previously budgeted, but which had remained unfilled.
    8. Counties — Appropriations — Register of Deeds.
    The action of a county board of commissioners in reducing appropriations so that six filled positions in the office of the register of deeds would be required to be eliminated constitutes inadequate funding where the office of the register of deeds is already seven months behind in posting deeds and other conveyances and is three weeks behind in opening mail and where the loss of the six employees would cause matters to fall further behind.
    9. Counties — Appropriations — Prosecutor.
    The action of a county board of commissioners in reducing appropriations so that 18 assistant prosecutor positions would be required to be eliminated from a prosecutor’s office, an office that already has one of the highest caseloads per assistant prosecutor of any major prosecuting staff in the country and that is already losing some cases because of the inability of assistant prosecutors to adequately prepare for trial, constitutes inadequate funding, such that the prosecutor would be unable to carry out his statutorily mandated duties.

      James F. Finn and Mark S. Michael, for plaintiff Wayne County Clerk and plaintiff Wayne County Register of Deeds.

      Burgoyne, Kaufman, Roche & Ward, P.C. (by Bert Burgoyne and David W. Berry), for plaintiff Wayne County Drain Commissioner.

      William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, Terrance K. Boyle, Deputy Chief, Criminal Division, and Timothy A. Baughman, Assistant Prosecuting Attorney, for plaintiff Wayne County Prosecutor.

      George H. Cross, Corporation Counsel, and James W. Quigly, Assistant Corporation Counsel, for defendants.

      White, Spaniola, Knudsen, Stariha & Potuznik, P.C. (of counsel: Henry J. Sefcovic for Bay County, Peter A. Cohl for Ingham County, Jon DeWitt for Kent County, Paul E. Braunlich for Monroe County, William S. Bovill for Saginaw County, and Robert E. Guenzel for Washtenaw County) for Amicus Curiae Muskegon County.
    Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiffs sought declaratory and injunctive relief in the Wayne County Circuit Court from budgetary reductions adopted by the Wayne County Board of Commissioners for fiscal year 1978-1979. The gravamen of the complaints was that implementation of the adopted budget would render the plaintiffs unable to perform the functions of their offices as mandated by the constitution and laws of the State of Michigan. These cases were consolidated and heard together.

The plaintiffs are elected executive officers of Wayne County. The prosecutor, clerk, treasurer and register of deeds are constitutional officers pursuant to Const 1963, art 7, § 4. The drain commissioner is a statutory officer pursuant to MCL 280.21; MSA 11.1021. The defendants are the Wayne County Board of Commissioners, Wayne County Board of Auditors, Wayne County Civil Service Commission, and the "Task Force” (a group of nonelected individuals designated by the Ways and Means Committee of the Wayne County Board of Commissioners). Each of the defendants played a significant part in the formulation of the budget.

The defendants originally prepared and adopted a budget for fiscal year 1978-79 which included cuts for most county departments. Notwithstanding these reductions, the budget reflected an approximate 15 million dollar deficit.

On November 17, 1978, the Michigan Municipal Finance Commission ordered the county to take immediate steps to eliminate the deficit which had accumulated over several years. The budgetary process was reopened, and proceeded with the object of eliminating the county’s deficit. All department heads, including the plaintiffs, were afforded an opportunity to be heard during the budgetary process. Following a preliminary budgetary phase, the board of auditors went through the various departmental requests and made certain deletions. Even with these reductions, however, there were insufficient revenues to retire the accumulated deficit. Consequently, the board of auditors recommended a system of "mandatory credits” to the board of commissioners. The mandatory credit amounted to a 15% reduction in personnel services for each of the county’s departments.

The board of commissioners accepted a modified version of the plan. Consequently, the commissioners requested that all department heads, including the plaintiffs, submit a plan to effect the equivalent of a 15% reduction in personnel costs. At this time, the commissioners also ordered their financial advisor to personally make budget cuts "for any department which failed to submit any plan or a totally viable plan”.

Among the plaintiffs, only the register of deeds presented a plan to effect the reductions, but the plan was rejected because it was premised on increased revenues being derived from the register of deeds’ Tract Index Department. The other plaintiffs either ignored the request to submit a budget effectuating the cuts or responded that no further deletions could be made if they were to carry out their statutorily mandated functions. In the absence of viable plans to effect the budget reduction, the county’s fiscal advisor submitted his own plans to the board of commissioners. Each of the plans concerning the plaintiffs were adopted by the commissioners, resulting in this action.

The trial court found, upon extensive proofs, that the board of commissioners, as the county’s legislative branch of government, was not without restrictions upon its power with regard to the administration of functions mandated by the state Legislature. The trial court further found that the scheme adopted by the commissioners to effect the budget cuts was arbitrary and capricious because it did not take into consideration priorities between state mandated and other functions. The court ultimately held that if the adopted budget was implemented, all of the plaintiffs except the register of deeds could fulfill their statutory duties. From this determination, the plaintiffs, excluding the register of deeds, appeal. The defendants also appeal, contending that the separation of powers doctrine precludes judicial review of their budgetary decisions.

It is elementary that the separation of powers doctrine mandates the preservation of the legislative, executive and judicial branches of government as entities distinct from one another, Const 1963, art 3, § 2. The judiciary will not interfere with the discretionary actions of legislative bodies. As noted by our Supreme Court in Detroit v Circuit Judge of Wayne County, 79 Mich 384, 387; 44 NW 622 (1890):

"It is one of the necessary and fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government. So long as they do no illegal act, and are doing business in the range of the powers committed to their exercise, no outside authority can intermeddle with them”.

This, however, does not mean that all appropriations decisions of the boards of commissioners are exempt from judicial review. Whenever a board fails to perform duties imposed by the state Legislature or constitution, the courts will not hesitate to order performance. Stowell v Board of Supervisors for Jackson County, 57 Mich 31; 23 NW 557 (1885), Wayne County Jail Inmates v Wayne County Sheriff, 391 Mich 359; 216 NW2d 910 (1974), King v Director of the Midland County Department of Social Services, 73 Mich App 253; 251 NW2d 270 (1977). As Justice Kavanagh wrote in Wayne County Jail Inmates, supra, 364:

"While it is true that local boards of commissioners have legislative powers in some matters, in carrying out the duties imposed upon them by the Legislature their function is executive or administrative, and they have no legislative function in the premises.”

We cannot hold that every appropriations decision rendered by the county boards is exempt from judicial review. To do so would be to ignore the mandates of the Legislature. Where the Legislature has statutorily imposed on the county executive officers various duties and obligations, the county boards of commissioners must budget sums sufficient to allow the executive officers to carry out their duties and obligations.

This is by no means a novel or unwarranted extension of existing law. In King, supra, 260, we held that the Midland County Board of Commissioners did not have unfettered discretion to determine the sum to be appropriated for the maintenance of various welfare services within the county. We noted that Michigan law requires the county to maintain a general assistance program and held:

"If the amount of the appropriation was completely within the discretion of the board, the board could relieve itself of its responsibility of maintaining the general assistance program simply by appropriating insufficient funds.”

Just as every appropriations decision is not exempt from judicial review, not all budgetary decisions made by the county boards are reviewable. We are fully cognizant of the limitations placed upon our power of review by the separation of powers doctrine. Furthermore, we welcome these limitations as we have no desire to become the final arbiter of all budgetary disputes. The judiciary will not involve itself with the truly discretionary appropriations decisions of a county board, unless the action taken is so capricious or arbitrary as to evidence a total failure to exercise discretion. Veldman v Grand Rapids, 275 Mich 100; 265 NW 790 (1936). Thus, in Brownstown Twp v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976), lv den 399 Mich 831 (1977), we refused to order the Wayne County Board of Commissioners to allocate funds to operate a road patrol, because there was no statutory or common law duty requiring the sheriff to perform such a service, nor any proof that the board’s decision not to fund the road patrol was a product of caprice or arbitrariness. By necessary implication, however, had the Court found such a duty, it would have ordered the commissioners to fund the road patrol.

In the instant case, the trial court concluded that the defendant board of commissioners acted arbitrarily and capriciously in adopting a scheme whereby all county departments were required to reduce their budgets by an amount equivalent to 15% of their personnel costs. We disagree. Our review of the record leads us to the conclusion that serious thought was given by the defendant board in determining the most equitable and efficacious means of implementing the budget cuts. The board genuinely believed that all of the services it was funding were important enough so that all should be treated alike. Our determination that the defendant board did not act arbitrarily or capriciously, however, does not resolve the problem of whether the board has provided the county executive officers sufficient levels of funding to fulfill their statutorily mandated functions.

In Wayne Circuit Judges v Wayne County, 383 Mich 10; 172 NW2d 436 (1969), Justice Black’s opinion speaks of the inherent powers of the courts to make certain that the courts function "serviceably” as a co-equal branch of Michigan’s government. In that case on rehearing, our Supreme Court held that the courts could order Wayne County to provide the Wayne County Circuit Court with critically needed law clerks and probation officers. We adopt "serviceability” as the standard to be applied in determining whether the board of commissioners has unlawfully underfunded the county executive officers so that they are unable to fulfill their statutory obligations. Serviceability must be defined in the context of Justice Black’s opinion, i.e. "urgent”, "extreme”, "critical”, and "vital” needs. A serviceable level of funding is the minimum budgetary appropriation at which statutorily mandated functions can be fulfilled. A serviceable level is not met when the failure to fund eliminates the function or creates an emergency immediately threatening the existence of the function. A serviceable level is not the optimal level. A function funded at a serviceable level will be carried out in a barely adequate manner, but it will be carried out. A function funded below a serviceable level, however, will not be fulfilled as required by statute.

We now turn to the factual determination which must be made in relation to each of the plaintiffs’ departments. This Court reviews actions seeking declaratory judgment de novo. However, the findings of the trial court will not be disturbed unless this Court is convinced it would have arrived at a different result had it been in the position of the trial court. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969), Garb-Ko, Inc v Carrollton Twp, 86 Mich App 350; 272 NW2d 654 (1978).

We agree with the trial court’s conclusion that the clerk, treasurer, and drain commissioner are serviceably funded, and can fulfill their statutory obligations within the confines of their reduced budgets. Despite the budgetary reductions, the clerk, treasurer and drain commissioner lost only one, two and two filled positions respectively. Most of the budget losses experienced by these plaintiffs were absorbed by the elimination of positions budgeted in previous fiscal years but not actually filled due to a hiring freeze adopted by the county in 1975.

We also agree with the trial court’s conclusion that the 1978-79 fiscal year budget adopted by the commissioners does not provide a serviceable level of funding for the register of deeds. Under the 1978-79 budget, the register of deeds would lose six filled positions. At the time this suit was heard, the Tract Index Division of the register of deeds was seven months behind in posting deeds and other conveyances. There was a three week delay in that office in opening mail. With the loss of the six employees, the Tract Index Division would begin to fall behind at the rate of one day for each five working days. This would hinder the transfer of properties and cause havoc with the obtaining of title insurance and abstracts. The delay in receiving and posting transfers of real estate would very likely result in the loss of some $240,-000 in revenues from the title insurance companies.

We disagree, however, with the trial court’s conclusion that the 1978-79 budget provides suffident sums to allow the prosecutor to perform his mandated functions serviceably. The trial court’s conclusion was largely premised on crime statistics showing a reduction of crime in Wayne County. However, this reduction did not result in a corresponding decrease in the volume of work which had to be performed by the prosecutor and his staff.

At the time this suit was instituted, the average assistant prosecuting attorney in Wayne County was carrying a caseload of approximately 140 felony cases. At 122 felonies per caseload, Wayne County would have a higher per attorney caseload than 99% of the major prosecuting staffs in the country. Testimony indicated that at 140 felonies per caseload, assistants were losing some cases because of an inability to adequately prepare for trial caused by the volume of their workloads. The proposed reduction could mean that each assistant’s caseload would increase to 163 felonies.

The budget as adopted for fiscal year 1978-1979 would result in the loss of 18 assistant prosecuting attorneys. It is our opinion that such a loss would render the prosecutor unable to perform the statutorily mandated functions of his office, thereby failing to meet the serviceability standards heretofore defined in the opinion.

The prosecutor does have a duty to set his priorities before contending that he is being funded below a serviceable level. We note that the Wayne County Organized Crime Task Force and the prosecutor’s Repeat Offenders’ Bureau have lower per attorney caseloads than the other depártments in the prosecutor’s office. While the prosecutor has a duty to prosecute the violations of the law by criminal syndicates and repeat offenders, there is no duty to maintain separate departments to do this work. The Wayne County Board of Commissioners, in conjunction with the prosecutor, can review these areas to ascertain if some of the positions may be eliminated. It must be kept in mind at all times, however, that the functions of the Organized Crime Task Force and the Repeat Offenders’ Bureau must still be carried out. If the elimination of any positions in these units will render the prosecutor unable to fulfill his statutory mandate to bring to the bar of justice such alleged offenders, the board of commissioners may not make the prosecutor impotent in this regard.

It occurs to us that both the Organized Crime Task Force and the Repeat Offenders’ Bureau are highly successful units eminently worthy of continued funding. However, within the parameters of the foregoing paragraph, this is a legislative judgment which the board of commissioners, and not the Court, has the power to make.

We also note that the prosecution of consumer protection cases is only discretionary by statute. The Wayne County Board of Commissioners may also examine this area, in conjunction with the prosecutor, to ascertain if savings might be effected.

We are not unmindful of Wayne County’s dismal economic condition. However, as Judge, now Justice, Levin stated in Wayne Circuit Judges v Wayne County, 15 Mich App 713, 728-729; 167 NW2d 337 (1969):

"We think that before the county should be heard to interpose financial inability to provide the required funds it must demonstrate not only that there is a shortage of funds but also that such shortage is attributable to obligations having the same rank and priority in terms of legislative mandate upon the board of supervisors as do appropriations for probation officers, law clerks and a judicial assistant. For all that appears on this record the county’s financial embarrassment may be attributable to the incurment of liabilities and the making of expenditures of a discretionary nature and not because of expenditures required by the legislature. Until it is made to appear that the county’s financial embarrassment cannot be alleviated by the elimination of discretionary expenditures, there is no need to consider the contentions of the parties as to whether the county is in fact short of funds and how, if the kind of shortage referred to in opinions of the attorney general were shown to exist, the financial resources of the county would be apportioned.” (Footnotes omitted.)

Affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.

       The Supreme Court appointed visiting Judge Allen C. Miller of the 23rd Judicial Circuit to hear this case.

       MCL 400.55; MSA 16.455.

       Justice Black’s opinion was adopted by the majority in Wayne Circuit Judges v Wayne County (On Rehearing), 386 Mich 1; 190 NW2d 228 (1971), cert den 405 US 923; 92 S Ct 961; 30 L Ed 2d 794 (1972).

       The duties of the clerk, treasurer and drain commissioner are enumerated in MCL 50.61 et seq.; MSA 5.831 et seq., MCL 48.35 et seq.; MSA 5.681 et seq., and MCL 280.21 et seq.; MSA 11.1021 et seq. respectively.

       The duties of the register of deeds are enumerated in MCL 53.89 et seq.; MSA 5.981 et seq.

       The duties of the prosecutor are enumerated in MCL 49.153 et seq.; MSA 5.751 et seq.

       Our review of the record does not reveal the disposition of misdemeanors, many of which are handled by the prosecutor’s office.

       MCL 445.915; MSA 19.418(15).

       Judge, now Justice, Levin’s opinion was ultimately affirmed in Wayne County Circuit Judges (On Rehearing), supra, and his reasoning was left undisturbed.