What Is the Effect of a Michigan Attorney General Opinion on Local Governments?

A column by Sue Jeffers

From time to time, the Michigan Attorney General issues an opinion in response to a question raised, most frequently, by a legislator. The opinion is published and distributed among legal, governmental, and political circles. The opinion may be well reasoned and persuasive. As such, those who believe that the analysis and outcome of the opinion will help support a given position will cite the opinion as evidence and authority for their position.

It then becomes important to ask—what effect does a Michigan Attorney General opinion (OAG) have on Michigan local units of government and, for that matter, on state agencies and the courts? The questions generally raised are the following:

1. What authority does the Attorney General have to issue an opinion?

2. Is an OAG binding on Michigan courts?

3. What legal effect does an OAG have on Michigan state agencies?

4. What legal effect does an OAG have on local governmental bodies?

5. Does an OAG have the effect of law unless overturned by a court?

Before we begin addressing the questions, it’s necessary to take a step back and answer a preliminary question: Who gets to decide these questions? This one is easy. As with all questions of constitutional and statutory interpretation, the Michigan Supreme Court is the final arbiter. Article VI of the Michigan Constitution vests the judicial power of state in “one court of justice.” As a result, many of our questions will be answered by specific Michigan Supreme Court decisions.

1. What authority does the Attorney General have to issue an opinion?

MCL 14.32 is clear that the Legislature has authorized that it is “the duty of the attorney general, when required, to give his opinion upon all questions of law submitted to him by the Legislature, or by either branch thereof, or by the governor, auditor general, treasurer or any other state officer. . . .”

2. Is an OAG binding on Michigan courts?

No. The Michigan Supreme Court has stated, on several occasions, that an Attorney General opinion is not binding on Michigan courts. Frey v Dep’t of Mosey and Budget, 429 Mich 315, 338 (1987). See also, MONY v Insurance Bureau, 121 Mich App 386 (1982); People v Waterman, 137 Mich App 429, 432 (1984).

3. What legal effect does an OAG have on Michigan state agencies?

The Michigan Court of Appeals, in Beer & Wine Ass’n v Atty General, 142 Mich App 294, 300 (1985), cited the Michigan Supreme Court decision of Traverse City Sch Dist v Attorney General, 384 Mich 390 (1971) and stated: “While [attorney general] opinions do not have the force of law, and are therefore not binding on courts, they have been held to be binding on state agencies and officers.” The court relied upon the language found in footnote 2 of the Traverse City case: “Although an opinion of the Attorney General is not a binding interpretation of law which courts must follow, it does command the allegiance of state agencies.”

See comments of Michigan Supreme Court in footnotes in the following opinions: In re Request Advisory Opinion 2005 PA 71, 470 Mich 1, 8, n 5 (2007) and Danse Corp v City of Madison Heights, 466 Mich 175, 182, n 6 (2002).

4. What legal effect does an OAG have on local governmental bodies?

There is no legal effect. The statutory grant of authority to the Attorney General is limited by its language to give legal advice to members of the Legislature and the departments and agencies of state government (MCL 14.32). There is no reference to local units of government in the statute. As such, the statute itself does not give rise to the question of whether an OAG has effect upon local units of government.

5. Does an OAG have the effect of law unless overturned by a court?

Frequently, one hears that an OAG has the force or effect of law unless overturned by a court. There is simply no “provisional” or “temporary” grant of authority to an OAG either by statute or court opinion. It appears to be one of the “Legal Urban Legends” that surface when arguments regarding the impact of an Attorney General opinion are raised.

Despite the questions raised in this column, it is widely recognized that an Attorney General opinion may offer valuable insight and research on an issue discussed in the opinion. This is particularly the case for issues that affect the operation of state government. Likewise, issues pertaining to local units of government are more appropriately addressed by legal counsel retained by the local unit.

This column highlights a recent judicial decision or Michigan Municipal League Legal Defense Fund case that impacts municipalities. The information in this column should not be considered a legal opinion or to constitute legal advice.

Sue Jeffers, Thomas R. Schultz and Jeffrey V.H. Sluggett receive Distinguished Municipal Attorney Awards

League General Counsel Bill Mathewson and Associate General Counsel Sue Jeffers.

The 2010 Distinguished Municipal Attorney Award was bestowed on three attorneys: Thomas R. Schultz, city attorney for Novi and other communities; Sue A. Jeffers, associate general counsel for the Michigan Municipal League and former Mt. Pleasant city attorney; and Jeffrey V.H. Sluggett, attorney for the municipalities of Cedar Springs, Walker, Saugatuck, Lakeview Village, and Alpine Township.

In making the announcement, Stephen K. Postema, MAMA president and Ann Arbor city attorney said, “Every year we get some excellent nominations and this year was no exception. These three attorneys are outstanding at what they do in serving Michigan’s municipalities. They have attained the highest level of professional accomplishment while serving other municipal attorneys through professional organizations like the MAMA and the International Municipal Lawyers Association.”

The Individual Awards recipients were honored at the MAMA luncheon, part of the 2010 Michigan Municipal League Annual Convention in Dearborn, September 21.

Sue Jeffers was associate general counsel for the League, and retired in 2010.