Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 17, 2012                                                                    Robert P. Young, Jr.,
                                                                                              Chief Justice

  144084 & (18)                                                                     Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
                                                                                        Mary Beth Kelly
  ROBERT DAVIS,                                                                         Brian K. Zahra,
           Appellant,                                                                              Justices

  v                                                       SC: 144084
                                                          COA: 306165
  EMERGENCY MANAGER FOR THE
  DETROIT PUBLIC SCHOOLS,
            Appellee.

  ____________________________________/

                                AMENDMENT TO ORDER

         On order of the Court, the order of April 16, 2012 is amended to correct a clerical
  error. The concurring statement by MARKMAN, J., is corrected to read as follows:

         MARKMAN, J. (concurring).

          I concur in the order for it is clear that the present controversy concerning the
  timeliness of the emergency manager’s oath has now been rendered moot. However, our
  state is fortunate that this controversy has arisen in the context of an official who could
  easily be reappointed to public office, as occurred here, unlike, for example, a state
  legislator. I write separately only to respond to the Chief Justice’s suggestion that the
  emergency manager might not even be constitutionally required to take an oath.

         First, I believe that logic suggests that the emergency manager must take an oath
  of office. Given that the responsibilities of the emergency manager are, in some
  circumstances, to carry out the duties of the mayor and the members of the city council of
  a municipality, or, as in this case, the members of a public school board, all of whom
  themselves are required to take oaths of office, it would seem anomalous that an official
  serving in their stead would not also be required to make the same commitment to the
  laws and constitutions of the United States and Michigan. Moreover, it is noteworthy
  that the emergency manager, Roy Roberts, has never asserted that he is not required to
                                                                                                                2

take an oath and, indeed, he has now undertaken to subscribe to exactly such an oath on
two separate occasions.

        Second, this case seems significantly distinguishable from Underwood v
McDuffee, 15 Mich 361 (1867), which held that “referees” are not officers within the
meaning of Constitution 1850, article 18, § 1, a predecessor of Constitution 1963, article
11, § 1. Such “referees,” were “appointed only when [the] parties consent[ed], or
waive[d] their right to a jury,” and their authority was “confined to the particular suit.”
Underwood, 15 Mich at 367. Unlike referees, emergency managers are not “depend[ent]
upon the will of private persons, who may call [them] into existence for their own
purposes, and at their own pleasure,” and their authority is not “confined to [a] particular
suit.” Id. The “impermanence” of such a referee is far different, in my judgment, from
the impermanence of such positions as emergency financial managers and cabinet
officers, each of whom serve at the pleasure of the Governor and without fixed terms of
office.

        Finally, even assuming that an emergency manager is not an “officer” within the
meaning of Constitution 1963, article 11, § 1, respondent himself acknowledges that he is
in the “service of the state,” within the meaning of MCL 15.151, which requires all such
persons “as a condition of their employment, [to] take and subscribe to the oath or
affirmation required of members of the legislature and other public officers by section 2
of article 16 of the constitution of 1908 of the state of Michigan.” Section 2 of article 16
of the constitution of 1908 of the state of Michigan, another predecessor of Constitution
1963, article 11, § 1, required officers to take the oath “before they enter[ed] on the duties
of their respective offices.”




                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          April 17, 2012                      _________________________________________
        t0411                                                                 Clerk
