Amicus Brief

MDEQ and Steve Chester, Director v Worth Township

Case Year: 2013
Case Forum: Michigan Supreme Court
Keywords: NREPA, sanitary sewer systems, unfunded mandates, Headlee Amendment, Michigan Constitution
Amicus Counsel:

John H. Bauckham | Bauckman, Sparks, Lohrstorfer, Thall, & Seeber, P.C. | 458 West South Street | Kalamazoo, MI 49007-4621

CoAmicus Parties:

1. Michigan Townships Association (MTA)
2. Michigan Association of County Drain Commissioners


The Headlee Amendments prohibiting the mandatory addition of new activities or services upon units of local governmental by the state legislature or any state agency without state funding of the necessary increase of costs of the same is clear and unambiguous and cannot be encroached upon or added to by judicial legislation. The addition of a necessary finding of a “lessening of the state’s burden” by the addition of a new responsibility upon a local unit of government to avoid state
funding of the increased costs to the unit cannot be implied or supported either by the plain language of Const 1963, art 9, §§ 25 and 29 or by the purpose and intent of the Headlee Amendment of which those sections are a part. It is also an obvious violation by the Court of Appeals of the Separation of Power Clause of the Constitution. Imposition of this additional requirement will burden local units of government with the cost of these unfunded obligations and are likely to result in increased costs to tax paying residents and businesses within those jurisdictions, all contrary to the central intent and purposes of the Headlee Amendment initiated and confirmed by the electorate. Furthermore, even if this additional condition were to be upheld, it has been satisfied in this case by the fact that MDEQ is primarily responsible under NREPA for
protecting the environment against pollution and is attempting to shift its burden onto a local unit of government ill-equipped to comply with such new required activity without complete state funding.
At no time previous to the within lawsuit has a township or drain commission been required by state law or regulation to construct a sewage treatment plant and system. It certainly is a “new activity or service beyond that required by existing law”
which per Const 1963, art 9, §§ 25 and 29, must be funded by the state.


MI Supreme Court Order:
On order of the Court, the application for leave to appeal the December 11, 2012 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the language bolded in the following passages of the Court of Appeals opinion, because it can be read to suggest that in a case such as this one, in which the question is whether imposing a duty to remediate on the township violates the prohibition against unfunded mandates contained in the second sentence of Const 1963, art 9, § 29, it is also necessary to show that the state has shifted to a local unit of government a cost formerly borne or funded by the state, contrary to the
fIrst sentence of § 29. See Durant v State Bd of Ed, 424 Mich 364, 378-379 (1986) (“The first sentence…is aimed at existing services or activities already required of local government. The second sentence addresses future services or activities.”); Schmidt v Dep’t of Education, 441 Mich 236,254 (1992). In sum, Headlee applies whenever legislation enacted on or after
December 23, 1978 (the date the Headlee Amendment went into effect) requires a unit of local government to increase its level of activity or service. [Livingston Co v Dep’t of Mgt & Budget, 430 Mich 635] at 648 [(1988)] (Art 9 § 29 refers only to required, not optional, services or activities.”). Furthermore, Headlee applies only when a statutory requirement lessens the state’s burden by shifting to units of local government the responsibility of providing services once provided or
funded by the state. Id. at 645. [299 Mich App at 3 (emphasis added).] In sum, we hold that requiring defendant’s compliance with MCL 324.3109(2) does not violate the Headlee Amendment because,
although it may financially burden the defendant, it does not shift the financial burden from the state to a unit of local government. [Id., at 5 (emphasis added).]
In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.

MSC requested LDF amicus brief? No
Case Number: 2008-14
©2022 Michigan Municipal League LLC. All rights reserved