Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 9, 2012                                                                   Robert P. Young, Jr.,
                                                                                               Chief Justice

  143621                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
  TIMOTHY ADER,                                                                          Mary Beth Kelly
           Plaintiff-Appellee,                                                           Brian K. Zahra,
                                                                                                    Justices
  v                                                       SC: 143621
                                                          COA: 290583
                                                          Saginaw CC: 08-001822-CZ
  DELTA COLLEGE BOARD OF TRUSTEES,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  February 1, 2012. The application for leave to appeal the July 14, 2011 judgment of the
  Court of Appeals is DENIED, because we are no longer persuaded that the questions
  presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

         I respectfully dissent from the denial of leave because I believe the ‘standing’
  doctrine set forth in Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010)
  (LSEA), violates the constitutional separation of powers and should be overruled.

          As a threshold matter, whether plaintiff’s standing is determined under the rule of
  LSEA or the prior rule of Lee v Macomb Co Bd of Comm’rs, 464 Mich 726 (2001), and
  Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004), is dispositive
  of the resolution of this case. In this regard, it must be noted that both lower courts
  initially decided that plaintiff lacked standing under Lee and Cleveland Cliffs. Only after
  this Court remanded to the Court of Appeals for reconsideration in light of LSEA did the
  Court of Appeals reverse the trial court and conclude that plaintiff had standing under
  LSEA. Moreover, the parties themselves have both asserted that whether LSEA or
  Cleveland Cliffs governs is dispositive. The issue of which of these alternative doctrines
  governs standing in Michigan is squarely before this Court.

          In Lee, this Court voted 6-1 to adopt the constitutionally based standing test
  articulated by the United States Supreme Court in Lujan v Defenders of Wildlife, 504 US
  555, 559-560 (1992), which provides:

                “Over the years, our cases have established that the irreducible
        constitutional minimum of standing contains three elements. First, the
        plaintiff must have suffered an ‘injury in fact’—an invasion of a legally
        protected interest which is (a) concrete and particularized, and (b) ‘actual or
        imminent, not “conjectural” or “hypothetical.”’ Second, there must be a
        causal connection between the injury and the conduct complained of—the
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       injury has to be ‘fairly . . . trace[able] to the challenged action of the
       defendant, and not . . . th[e] result [of] the independent action of some third
       party not before the court.’ Third, it must be ‘likely,’ as opposed to merely
       ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
       [Lee, 464 Mich at 739, quoting Lujan, 504 US at 559-560.]
This Court then reaffirmed Lee in Cleveland Cliffs. However, in LSEA, this Court
overruled the standing doctrine set forth in Lee and Cleveland Cliffs and established in its
place a “limited, prudential doctrine” that uncoupled standing from its constitutional
moorings, providing:

              [A] litigant has standing whenever there is a legal cause of action.
       Further, whenever a litigant meets the requirements of MCR 2.605, it is
       sufficient to establish standing to seek a declaratory judgment. Where a
       cause of action is not provided at law, then a court should, in its discretion,
       determine whether a litigant has standing. A litigant may have standing in
       this context if the litigant has a special injury or right, or substantial
       interest, that will be detrimentally affected in a manner different from the
       citizenry at large or if the statutory scheme implies that the Legislature
       intended to confer standing on the litigant. [LSEA, 487 Mich at 372.]
Yet, as former Justice CORRIGAN pointed out in her dissent in LSEA, unlike the Lujan
test, the LSEA test is “really no test at all[.]” Id. at 388 (CORRIGAN, J., dissenting). It is a
“broad and amorphous principle that promises to be nearly impossible to apply in a
society that operates under the rule of law.” Id. at 417. The LSEA test provides standing
not only where the Legislature has seen fit to confer standing, but also where it may be
inferred that the Legislature intended to confer standing. However, the Legislature has
no dispositive authority to confer standing because standing is constitutionally based
within the separation of powers mandated by the Michigan Constitution.

      The separation of powers is explicitly set forth in Const 1963, art 3, § 2, which
provides:

               The powers of government are divided into three branches:
       legislative, executive and judicial. No person exercising powers of one
       branch shall exercise powers properly belonging to another branch except
       as expressly provided in this constitution.
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Our constitution further provides that the Legislature is to exercise the “legislative
power” of the state, Const 1963, art 4, § 1, the Governor is to exercise the “executive
power,” Const 1963, art 5, § 1, and the judiciary is to exercise the “judicial power,” Const
1963, art 6, § 1. As we explained in Cleveland Cliffs, perhaps the most critical element
of the “judicial power” has been its traditional requirement of a genuine “case or
controversy” between the parties, one in which there is a real, not a hypothetical, dispute,
and one in which the plaintiff has suffered a particularized or personal injury. Absent
such an injury, little stands in the way of the judicial branch becoming “intertwined in
every matter of public debate.” Cleveland Cliffs, 471 Mich at 615. Through this
intertwining, the interests of the other branches of government would necessarily be
implicated, particularly the interests of the executive branch in administering the law.
That is, if the Legislature is permitted at its discretion to confer jurisdiction upon this
Court, unconnected with any genuine case or controversy, this Court would be
transformed in character and empowered to decide matters that have historically been
within the exclusive purview of the Governor and the executive branch. Unless there is
an individual who has personally and particularly been injured by the administration of
the laws, it is not the role of the judicial branch to monitor the work of the executive and
determine whether it is carrying out its responsibilities in an acceptable fashion. That
role is left to the people through their right to petition the Governor, and through their
right to vote. The judiciary of this state does not act as a superadministrator of the law.

       Given the final authority of the judicial branch to accord meaning to the
Constitution, the term “judicial power” cannot ultimately be defined by the Legislature
any more than “unreasonable searches and seizures” or the “equal protection of the laws”
can ultimately be defined by the Legislature. That a broadening and redefinition of the
“judicial power” comes in this case, as in Cleveland Cliffs, not from the judiciary itself,
usurping a power that does not belong to it, but from the Legislature purporting to confer
new powers upon the judiciary, the exercise of such power is no less improper. In either
case, the separation of powers prevents the reallocation of executive power to the
judiciary.

       Because I believe that ‘standing’ is perhaps the most vital doctrine in limiting the
“judicial power” to its proper purview, and because whether the rule of LSEA or that of
Lee and Cleveland Cliffs is applied in this case is dispositive of its resolution, I would
overrule LSEA, reverse the Court of Appeals’ decision on remand, and reinstate the Court
of Appeals’ initial decision.




                         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.
                         November 9, 2012                    _________________________________________
       t1106                                                                 Clerk
