Executive Impoundment Triggers UBAA Accrual; Ordinance-Based Funding for Independent Counsel Is “Permitted by Law”

Executive Impoundment Triggers UBAA Accrual; Ordinance-Based Funding for Independent Counsel Is “Permitted by Law”

Introduction

In Macomb County Prosecutor v. Macomb County Executive, the Michigan Supreme Court denied leave to appeal a published decision of the Court of Appeals that upheld a county commission’s authority to fund a county prosecutor’s engagement of independent legal counsel and confirmed the Court of Appeals’ jurisdiction over a budget-enforcement action under the Uniform Budgeting and Accounting Act (UBAA), MCL 141.421 et seq. Although the Supreme Court issued only an order denying leave, Justice Welch authored a separate concurrence refining two key points: (1) when a UBAA enforcement action “accrues” for the 60-day filing period, and (2) the scope of a county charter provision allowing countywide elected officials to obtain publicly funded independent counsel.

The dispute arose after the Macomb County Board of Commissioners appropriated $42,500 to the Prosecutor’s Office as a “contract services” line item for fiscal year 2024. The County Executive line-item vetoed that appropriation, the Commission overrode the veto, the Prosecutor submitted engagement agreements with five law firms, and the Commission approved those contracts. The Executive refused to sign, prompting the Prosecutor to bring a UBAA enforcement action in the Court of Appeals. The Court of Appeals ruled for the Prosecutor; the Supreme Court’s denial of leave leaves that published decision intact. Justice Welch’s concurrence clarifies when the 60-day clock begins and signals a narrower reading of the county charter’s authorization for independent counsel.

Summary of the Opinion

  • The Michigan Supreme Court denied the application for leave to appeal (June 16, 2025), allowing the Court of Appeals’ published opinion to stand.
  • The Court of Appeals had held:
    • It had jurisdiction over the Prosecutor’s action under MCR 7.203(C)(5) and MCL 141.438(6), (7), and (10) because the dispute sought enforcement of a line item in the general appropriations ordinance (Ordinance 2023-04).
    • The action was timely under MCL 141.438(7)(b) based on events within 60 days of filing (the Commission’s approval of the law firm contracts and the Executive’s memo refusing to sign).
    • Macomb County Charter § 6.6.5 permitted the use of public funds to retain independent counsel when authorized “by law,” and “law” included the duly enacted appropriations ordinance.
  • Justice Welch concurred in the denial of leave, agreeing with jurisdiction and timeliness but explaining that the better accrual date is the County Executive’s January 29, 2024 memorandum impounding the funds—an “action relating to the enforcement” of the general appropriations act—thus starting the 60-day clock under MCL 141.438(7)(b).
  • On the merits, the concurrence agreed that Charter § 6.6.5 allowed the Commission to authorize public funds for outside counsel because “by law” encompasses a validly enacted ordinance. Citing Hackel v Macomb County Board of Commissioners (decided the same day), Justice Welch emphasized that “by law” is broad enough to include ordinance law.
  • Justice Welch questioned (without deciding) the Court of Appeals’ apparent conclusion that Charter § 6.6.5 imposes no limit on the purposes for which independent counsel may be retained with public funds. The concurrence reads the second sentence of § 6.6.5 as limiting such authorization to retaining counsel to seek injunctive, mandamus, or declaratory relief to clarify or enforce the official’s powers—casting doubt on contracts authorizing only “prelitigation services” if no proactive litigation is contemplated. This issue, however, was not before the Supreme Court.

Background and Procedural History

  • November 27, 2023: The Macomb County Board of Commissioners enacted Ordinance 2023-04 (the FY 2024 general appropriations ordinance) including a “contract services” line item of $42,500 for the Prosecutor’s Office.
  • December 8, 2023: The County Executive exercised a line-item veto of that appropriation, asserting that using public funds for outside counsel violated Charter § 6.6.5.
  • December 14, 2023: The Commission overrode the veto via Resolution 2023-11699.
  • January 25, 2024: The Commission approved the Prosecutor’s engagement agreements with five law firms via Resolution 2024-11938.
  • January 29, 2024: The Executive issued a memorandum refusing to sign the contracts and questioning the legal basis to expend public funds for independent counsel.
  • March 13, 2024: The Prosecutor filed a complaint in the Court of Appeals seeking mandamus, declaratory, and injunctive relief under the UBAA’s budget-enforcement provisions.
  • June 27, 2024: The Court of Appeals issued a published decision ruling for the Prosecutor, rejecting challenges to jurisdiction, timeliness, and legality of the appropriation.
  • June 16, 2025: The Michigan Supreme Court denied leave. Justice Welch issued a concurrence addressing accrual and the scope of Charter § 6.6.5; Justice Hood did not participate.

Analysis

Precedents and Authorities Cited

  • UBAA enforcement framework (MCL 141.438):
    • MCL 141.438(5): Enforcement and effectuation of a general appropriations act is vested in the county’s chief administrative officer (here, the County Executive).
    • MCL 141.438(6): Standing—an elected official who heads a branch of county government may bring an action “relating to the enforcement of a general appropriations act for that branch of county government.”
    • MCL 141.438(7): 60-day limitations period measured from the adoption of the general appropriations act or from “an amendment to a general appropriations act or an action relating to the enforcement of that general appropriations act” that constitutes the basis for suit.
    • MCL 141.438(9): In suits under subsection (7)(b), the Court of Appeals’ jurisdiction is limited to the portion of the general appropriations act directly affected by the challenged amendment or enforcement action.
    • MCL 141.438(10): The Court of Appeals’ jurisdiction over such actions is exclusive.
  • UBAA definitions:
    • MCL 141.422c(2): “General appropriations act” means the budget as adopted by the legislative body or given legal effect under the charter.
    • MCL 141.422a(3): “Appropriation” is an authorization to incur obligations and expend public funds for a stated purpose.
  • Macomb County Charter and instruments:
    • Charter § 4.6: Commission acts via ordinances or resolutions.
    • Charter § 6.2: Establishes the Prosecuting Attorney’s department.
    • Charter § 6.6.5: Limits expenditures for legal counsel unless permitted by law; authorizes the Executive to use Corporation Counsel or the Commission to authorize independent legal counsel to seek injunctive, mandamus, or declaratory relief to clarify or enforce the official’s powers.
    • Charter § 8.7: The budget is effectuated through an appropriations ordinance.
  • Hackel v Macomb County Board of Commissioners, ___ Mich ___ (June 16, 2025) (Docket No. 166363):
    • Interprets “by law” broadly to encompass validly enacted ordinances, not solely state statutes. Justice Welch relies on Hackel to support reading Charter § 6.6.5’s “unless permitted by law” to include authorization embodied in an appropriations ordinance.
  • Wood v State Administrative Board, 255 Mich 220 (1931):
    • Explains the effect of a veto in preventing proposed legislation from becoming law unless overridden. Justice Welch uses Wood to underscore that the “contract services” line item only became legally effective after the Commission overrode the Executive’s line-item veto.
  • Court rule:
    • MCR 7.203(C)(5): Confers original jurisdiction on the Court of Appeals for certain actions authorized by law; applied here to UBAA enforcement proceedings.

Legal Reasoning

1) Jurisdiction and the Nature of the Action

The action was framed as enforcing a line item in a duly enacted general appropriations ordinance (Ordinance 2023-04). The Court of Appeals recognized that even though the Commission later passed Resolution 2024-11938 approving specific contracts, the legal controversy remained one of enforcing the preexisting budget appropriation. Under MCR 7.203(C)(5) and MCL 141.438(6), (7), and (10), the Court of Appeals had exclusive original jurisdiction over such an enforcement action.

The Court of Appeals also rejected the argument that the resolution approving specific contracts was not itself an “appropriations action,” because the resolution’s viability depended on the funds appropriated in the general appropriations ordinance. The concurrence agrees with this jurisdictional framing.

2) Accrual Under MCL 141.438(7): What Starts the 60-Day Clock?

MCL 141.438(7) allows a UBAA enforcement action to be filed within 60 days after either (a) the adoption of the general appropriations act or (b) “an amendment to a general appropriations act or an action relating to the enforcement of that general appropriations act” that constitutes the basis of the suit. The Court of Appeals deemed the action timely because it was filed within 60 days of both the resolution approving the contracts and the Executive’s memo. Justice Welch concurs in timeliness but refines the accrual analysis: the more precise accrual date here is the Executive’s January 29, 2024 memorandum refusing to sign and thereby impounding the funds. That refusal was “an action relating to the enforcement” of the appropriations act because the Executive, as chief administrative officer, is charged with enforcing and effectuating the budget (MCL 141.438(5)); his impoundment action concretely prevented the release of appropriated funds.

Significance: The concurrence underscores that accrual can be pegged to a discrete enforcement-related act occurring after budget adoption—such as an executive impoundment or refusal to execute contracts—so long as that act is the basis for the suit. This can be outcome determinative in close timeliness disputes.

3) “Permitted by Law” in Charter § 6.6.5 Includes Ordinances

The first sentence of Charter § 6.6.5 bars countywide elected officials from expending public funds for legal counsel “unless permitted by law.” Justice Welch, relying on the Supreme Court’s same-day decision in Hackel, confirms that “law” is not restricted to state statutes; it includes validly enacted county ordinances. Because the Macomb County Charter requires Commission action to be taken through ordinances or resolutions and the budget to be implemented by appropriations ordinance, the Commission’s passage of Ordinance 2023-04 lawfully authorized the Prosecutor’s “contract services” line item. Once the veto was overridden, that line item had the force of law. Thus, the Prosecutor’s use of those funds to retain independent counsel, as approved by the Commission, was “permitted by law.”

4) The Purpose-Limiting Clause in Charter § 6.6.5

The second sentence of Charter § 6.6.5 provides that if a countywide elected official seeks to protect or effectuate the office’s rights, powers, and duties, “the Executive may authorize the use of Corporation Counsel, or the Commission may authorize the use of independent legal counsel, to seek injunctive, mandamus, or declaratory relief … to clarify or enforce the rights, powers, and duties of the office.” The Court of Appeals read this provision as not restricting the purposes for which independent counsel may be retained if funds are otherwise lawfully appropriated.

Justice Welch questions that reading. In her view, the most natural construction is that the Commission’s authority to authorize independent counsel is for a specific purpose: initiating litigation to secure injunctive, mandamus, or declaratory relief. On that reading, a resolution authorizing “prelitigation services” only—without an intent to proactively commence litigation—may not be lawful under the Charter. The concurrence, however, does not resolve this question, both because the issue was not presented to the Supreme Court and because the defendants did not develop it as an independent ground for reversal.

Impact and Practical Implications

A. Timeliness in Budget-Enforcement Litigation

  • The concurrence’s accrual analysis provides a clear, administrable trigger: when an executive action impounds or otherwise refuses to effectuate an appropriation, the 60-day period under MCL 141.438(7)(b) begins. This matters whenever:
    • A county executive or other chief administrative officer declines to sign contracts or release appropriated funds;
    • There are post-adoption enforcement skirmishes affecting a single line item or department;
    • The adoption date is stale but a fresh enforcement obstruction forms the “basis for the suit.”
  • Practitioners should document the exact date and content of executive enforcement-related actions (memos, veto-related communications, refusals to process requisitions), as those may establish accrual and jurisdictional timeliness.

B. Scope of “Law” Authorizing Expenditures for Independent Counsel

  • By endorsing the view that “by law” includes local ordinances, the concurrence (in harmony with Hackel) validates the use of appropriations ordinances as the legal vehicle authorizing expenditures for independent legal services, subject to compliance with the Charter and state law.
  • County boards can, through appropriations ordinances, lawfully allocate funds for independent counsel for countywide elected officials, provided that the Charter’s conditions are met.

C. Purpose Limits on Independent Counsel

  • Justice Welch’s textual reading of Charter § 6.6.5 flags a potential limit: Commission authorization of independent counsel may be confined to pursuing specified judicial relief (injunction, mandamus, declaratory judgment) to clarify or enforce official powers—not to open-ended advisory or prelitigation work unmoored from contemplated litigation.
  • Anticipated litigation strategy: Commissions and countywide officials seeking to retain independent counsel should align resolutions and engagement letters with the Charter’s enumerated purposes, expressly indicating the intention to seek injunctive, mandamus, or declaratory relief if necessary. Pure “prelitigation services” authorizations may be vulnerable to challenge.

Complex Concepts Simplified

  • General appropriations act: The annual budget ordinance that authorizes spending for specific purposes. In counties with charters, it is the ordinance that gives line items legal effect.
  • Appropriation: A legal authorization to incur obligations and spend public funds for a stated purpose. It does not, by itself, compel the executive to sign specific contracts; that occurs through enforcement and administration.
  • Action relating to enforcement: Any executive or administrative act that implements—or refuses to implement—the budget (e.g., impounding funds, refusing to execute contracts). Such actions can trigger the 60-day UBAA filing window.
  • Impoundment: The executive’s withholding of appropriated funds, effectively preventing their expenditure. Here, the Executive’s memorandum functioned as impoundment.
  • Line-item veto and override: The executive can veto specific appropriations; they have no legal effect unless the legislative body overrides the veto. Once overridden, the appropriation becomes law.
  • “Permitted by law”: Not limited to state statutes. Includes valid local ordinances, especially appropriations ordinances adopted pursuant to a charter.
  • Exclusive jurisdiction of the Court of Appeals: UBAA enforcement suits must be brought directly in the Court of Appeals within the limited time frames; they cannot be initiated in the circuit court.
  • Mandamus: A court order compelling a public official to perform a clear legal duty. Commonly sought in budget-enforcement disputes when an official refuses to carry out ministerial obligations.

Conclusion

While the Michigan Supreme Court denied leave in Macomb County Prosecutor v. Macomb County Executive, Justice Welch’s concurrence delivers two important clarifications for Michigan public-law practitioners. First, in UBAA enforcement actions, the 60-day filing period can accrue from a concrete executive enforcement action—such as an impoundment or refusal to sign contracts—that obstructs implementation of a budget line item. Second, Macomb County Charter § 6.6.5’s “unless permitted by law” clause encompasses authorization through a validly enacted appropriations ordinance, thereby supporting the Commission’s ability to fund independent legal counsel for countywide elected officials.

At the same time, the concurrence signals that the Charter likely limits the purpose for which independent counsel may be retained with public funds—to seeking injunctive, mandamus, or declaratory relief to clarify or enforce the official’s powers—raising caution about authorizations confined to “prelitigation services” without contemplated litigation. Because the Supreme Court did not grant review, the Court of Appeals’ published opinion remains controlling, but Justice Welch’s analysis will likely influence future charter- and UBAA-based disputes across Michigan counties.

Case Details

Year: 2025
Court: Supreme Court of Michigan

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