In Public Act
326 of 2004, the Michigan Legislature granted broad authority to the State
Administrative Board and the Department of Management and Budget to sell the
former site of the Ypsilanti State Hospital. This delegation of the
Legislature’s power was, in fact, unconstitutional under the conditions stated
in the lead opinion of the 1978 Michigan Supreme Court case Westervelt v.
Natural Resources Commission, a ruling cited specifically by the Michigan
Supreme Court in its order to the Michigan Court of Appeals to reconsider DPG
York v. Michigan.
lead opinion posited a two-part test for the constitutionality of a delegation
of legislative authority:
authorizing legislation must contain "standards … as reasonably precise as the
subject matter of the legislation ‘requires or permits.’ " Failure to provide
such standards would produce a delegation of legislative authority to an
executive agency in violation of the Michigan Constitution’s requirement of a
separation of powers between the branches of government.
authorizing legislation must provide safeguards "assuring that the public will
be protected against potential abuse of discretion at the hands of
administrative officials." The absence of such safeguards violates the Michigan
Constitution’s "due process clause," which protects citizens, businesses and
organizations from arbitrary exercises of government power.
Public Act 326 satisfies neither part of the Westervelt test:
(1) The act
violates the separation-of-powers component by providing only general criteria
that the State Administrative Board and the Department of Budget "may consider"
in the course of the sale, but need not follow. Despite the absence of binding
standards, the act further welcomes the SAB and the DMB to determine the "best
interests of the state" — a patently legislative function.
(2) The act
fails to protect due process, since no legislative checks, provisions of the
Administrative Procedures Act or other due-process safeguards restrain the SAB
and the DMB in their dealings with potential buyers. Indeed, rather than
discouraging administrative favoritism, the act openly invites it, allowing the
SAB and the DMB to award the land to a bidder through one-on-one negotiations
and to approve the sale without considering competing bids or the appraised
value of the land.
The Michigan Court of Appeals should declare the act unconstitutional.