396 Mich. 465 | Mich. | 1976
Lead Opinion
In response to the request by the Legislature, on March 29, 1976 this Court issued an advisory opinion
An advisory opinion is not precedentially binding upon the Court and represents only the opinions of the parties signatory. See Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973).
A recent decision of the United States Supreme Court reviewing the constitutionality of Federal campaign legislation has provided substantial guidance in our deliberations. Buckley v Valeo, 424 US 1; 96 S Ct 612; 46 L Ed 2d 659 (1976).
In our examination we also have been greatly assisted by the fine briefs and oral presentations of the Attorney General and eight amici. Their scholarly contributions are worthy of our highest praise.
The Legislature has undertaken the extremely difficult task of drafting legislation which will
Certified Question II — Constitutionality of Section 40
We are asked in certified question II whether §40
Section 40 of the 1975 PA 227 provides the following prohibition:
"Any person filing or aware of the filing of a sworn complaint according to the provisions of section 38 shall not publicize any information relative to the sworn complaint. A violation of this section shall be subject to penalty contained in section 178 of this act.”
This state’s Constitution (art 1, § 5) sets forth the following guarantee:
"Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”
It is our opinion that § 40 is constitutionally infirm.
Formal complaints alleging violations of the act or rules promulgated under the act may be filed with the commission. Under § 38
In addition to providing for confidential proceedings before the PEC, § 40 of the act provides that "Any person filing or aware of the filing of a sworn complaint * * * shall not publicize any information relative to the sworn complaint”. A violation of this section is a felony punishable by a "fine of not more than $10,000.00 or imprison[ment] for not more than 3 years, or both”.
No challenge is made to the Legislature’s authority to impose confidentiality upon commission members and personnel, or its records and proceedings. Perhaps, as Amicus Michigan Association of Broadcasters suggests, this veil of secrecy "constitutes the least drastic means for advancing the claimed governmental interests”.
On its face, § 40 prohibits not only media publication but private communications between two or more persons as well.
The Attorney General, in his brief in support of the constitutionality of 1975 PA 227, concedes that "A literal interpretation of § 40 appears to intrude upon the constitutional guarantee of free speech”. However, he invites this Court to read into the statutes certain time limitations to construe the prohibition against publication of information as in effect only until such time as § 38 permits matters to be made public (i.e. upon final determination of the PEC that violation has occurred or person under investigation requests that information be made public).
Even with the limitation suggested by the Attorney General we do not believe § 40 would pass constitutional muster. If public discussion were banned until after the commission concluded its proceedings, it is very possible that violations of the act would not come to the attention of the public until after the election. Further, if the commission concluded that no violation had occur
In electing persons to serve in positions of public trust, it is fundamental to our system of government that the voters be provided with the information necessary to make informed choices. Section 40 restricts freedom of speech and the media and could impede the flow of vital information to the voter.
Of course, the freedom of speech and of the media has its limitations and is not an absolute right. Near v Minnesota ex rel Olson, 283 US 697, 708; 51 S Ct 625; 75 L Ed 1357 (1931); Whitney v California, 274 US 357, 371; 47 S Ct 641; 71 L Ed 1095 (1927). However, when the state seeks to restrict this right, its efforts must be strictly scrutinized. Former Chief Justice Thomas M. Kavanagh, in Kropf v Sterling Heights, 391 Mich 139, 157-158; 215 NW2d 179 (1974), set forth the principle to guide our deliberations:
"For the state itself to legislate in a manner that affects the individual right of its citizens, the state must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest. Different degrees of state interest are required by the courts, depending upon the type of private interest which is being curtailed. When First Amendment rights are being restricted we require the state to justify its legislation by a ’compelling’ state interest. ” (Emphasis added.)
Proponents of the constitutionality of § 40 argue that compelling state interests are present. They maintain that confidentiality provided by this section will reduce the possibility that the complaint
These are no doubt important considerations but they do not amount to "compelling state interests” sufficient to justify the substantial restrictions imposed by § 40 on the guarantees of free speech and press.
Possible injury to the reputation of a public official does not afford a basis for repressing speech. See New York Times Co v Sullivan, 376 US 254, 272; 84 S Ct 710; 11 L Ed 2d 686 (1964). Publication and discussion of information relative to proceedings before the PEC does not pose an imminent threat to the administration of its proceedings. There is no jury to be prejudiced by pretrial publicity and the PEC members should be capable of making independent determinations. Finally, while some measure of the confidentiality maintained by the PEC over its proceedings may help preserve the integrity of governmental institutions, a complete ban on public discussion may well do more to destroy than preserve the public’s confidence.
Section 40 was conceived as one means of providing fair and honest elections. However, in seeking to accomplish this noble goal the act has impermissibly infringed upon the freedoms of speech and the press.
Certified question III asks:
"Is Chapter 2 of Act No 227 of the Public Acts of 1975, which requires a specific organizational structure for campaigns, limits expenditures and contributions for promoting or opposing candidates or ballot questions, and requires reports in violation of §§ 1, 3 or 5 of article I of the State Constitution of 1963?”8
It is our opinion that:
1. The requirement for a specific organizational structure for campaigns is constitutional.
2. Expenditure limitations as they apply to "persons”
3. Limitation of contributions to candidate committees are constitutional excepting those made by a candidate and family to his own candidate committee.
4. Disclosure and record keeping requirements are constitutional, both as to promotion of or opposition to a candidate or ballot question.
Under Const 1963, art 2, § 4, the Legislature is given the power to regulate the conduct of elections. It provides in pertinent part:
"The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.”
The organization structure for campaigns provided in chapter 2 lies within permissible limits.
2. Limitation on Expenditures.
Subsequent to the request of the Michigan House of Representatives for an advisory opinion, the United States Supreme Court decided Buckley v Valeo, 424 US 1; 96 S Ct 612; 46 L Ed 2d 659 (1976), rev’g in part, aff'g in part, 171 US App DC 172; 519 F2d 821 (1975), which effectively disposes of the greater part of question III.
This Court has held that First Amendment rights under the Federal Constitution are applicable to the state via the Fourteenth Amendment. Book Tower Garage, Inc v Local No 415, 295 Mich 580, 586; 295 NW 320 (1940). Also, the rights endowed under Const 1963, art 1, §§ 1, 3, and 5 are similar to those protected under the First Amendment of the Constitution of the United States.
Although the regulation of elections is a permissible legislative activity, such legislation must be examined closely when it infringes on fundamental freedoms guaranteed by the United States and our state Constitutions.
In Buckley, supra 14, the Supreme Court spoke
"The act’s contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people’. Roth v United States, 354 US 476, 484 [77 S Ct 1034; 1 L Ed 2d 1498] (1957). Although First Amendment protections are not confined to 'the exposition of ideas,’ Winters v New York, 333 US 507, 510 [68 S Ct 665; 92 L Ed 840] (1948), 'there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs, * * * of course including] discussions of candidates. * * *’ Mills v Alabama, 384 US 214, 218 [86 S Ct 1434; 16 L Ed 2d 484] (1966).”
The Supreme Court proceeded thereafter to find the limitations of expenditures on behalf of a candidate to be in violation of First Amendment rights because:
"A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other
Three distinctive limitations on expenditures imposed by the Federal act were found to be unconstitutional. Included were limitations on expenditures by candidates from personal or family resources,
Four provisions of chapter 2 of the Michigan act must fall in light of the Buckley rationale. Sections 83 and 84
3. Limitation of Contributions.
Limitations on contributions, however, excepting those made by the candidate and family,
"By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restric
In short, the Court found that the great potential for abuse inherent in the contribution of large sums of money could be avoided. The purpose served by limiting contributions outweighed the constitutional rights which were infringed. The Court elaborated, 26-27:
"To the extent that large contributions are given to secure political quid pro quos from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.
"Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the
The pertinent provision of 1975 PA 227 concerned with contribution limitations is § 93.
However, the Supreme Court did not find similar potential dangers in the contributions of candidates and their families to the candidate’s own campaign committee. Buckley, supra, found unconstitutional a limitation similar to subsection 93(6) of the Michigan act because it limited political expression and would serve no governmental interest once the limit on independent expenditures was removed. Such abuses as quid pro quo or undue pressure are not present in the use of a candidate’s own or family funds.
Section 93(7)
Therefore, we find § 93 to be constitutional, excepting subsections (6) and (7).
4. Disclosure and Record Keeping.
In Buckley, the Supreme Court also dealt with the impact of the compelled disclosure of contribu
"We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a 'relevant correlation’ or 'substantial relation’ between the governmental interest and the information required to be disclosed. See Pollard v Roberts, 283 F Supp 248, 257 (ED Ark, 1968) (three-judge court), aff'd, 393 US 14 [89 S Ct 47; 21 L Ed 2d 14] (1968). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct in requiring disclosure. NAACP v Alabama, supra, at 461 [357 US 449; 78 S Ct 1163; 2 L Ed 2d 1488 (1958)]. Cf. Kusper v Pontikes, 414 US 51, 57-58 [94 S Ct 303; 38 L Ed 2d 260] (1973).” (64-65.)
The governmental interests espoused by the Supreme Court as justification for the disclosure requirements included: (1) informing the public as to the source of campaign money and its utilization by the candidate; (2) deterrence of actual corruption and the avoidance of the appearance of corruption by bringing publicity to large contributions; (3) providing data to be used in the detection of violations of contribution limitations.
Although ballot questions were not at issue in Buckley, the same rationale applies to the reporting and disclosure requirements for contributions and expenditures relative to ballot questions.
Certified question IV addresses the constitutionality of § 95 of 1975 PA 227.
It is our opinion that corporate contributions or expenditures for the purpose of influencing the nomination or election of a candidate may be constitutionally prohibited in order to preserve the integrity of the electoral process. However, we would view the prohibition of corporate contributions or expenditures for the purpose of influencing the qualification, passage, or defeat of a ballot question as an unconstitutional abridgement of freedom of speech and press as guaranteed by art 1,§5.
1. Equal Protection.
Corporations have been prohibited from contrib
The state’s interest in preserving the integrity of the elective process must be balanced against the assumed right to free expression of an artificial entity (i.e., a corporation) regarding the candidacy of persons seeking election to public office. Recognizing that the state must show a compelling interest
The prohibition against corporate contributions or expenditures for such purposes does not violate their right to equal protection under the law as guaranteed by art 1, § 2. The United States Supreme Court in Buckley, supra, recently restated the established principle that:
"[A] 'statute is not invalid under the Constitution because it might have gone further than it did,’ Roschen v Ward, 279 US 337, 339 [49 S Ct 336; 73 L Ed 722 (1929)], that a legislature need not 'strike at all evils at the same time’, Semler v Dental Examiners, 294 US 608, 610 [55 S Ct 570; 79 L Ed 1086 (1935)], and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ Williamson v Lee Optical Co, 348 US 483, 489 [75 S Ct 461; 99 L Ed 563 (1955)].”
It is our opinion that restricting the application of § 95 to corporations alone did not constitute a violation of equal protection of the law.
2. Ballot Questions.
We believe a significant distinction exists between corporation contributions or expenditures made for the purpose of influencing the nomination or election of a candidate and, on the other hand, corporate contributions or expenditures made for the purpose of expressing a position or opinion concerning a public issue which may in-
Contributions or expenditures by corporations to communicate their positions or opinions concerning ballot questions serve to enlighten the public and encourage an informed decision-making process.
A ballot question may affect the assets, the conduct, or, indeed, the very existence of a corporation. Especially in such cases, the corporation is deserving of a public forum to express its position or opinion, much the same as the public has a right to hear those same matters.
Certified Question V — Constitutionality of Chapter 3
We are asked to decide whether § 101 of the act in chapter 3
Section 30 of article 4 provides:
"The assent of two-thirds of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes.”
Since the act was enacted upon a vote of less than two-thirds of the members of each house, and since we have concluded that § 101 is an appropriations bill in our discussion of certified question VI, the only remaining question is whether § 101 constitutes an appropriation for private purposes. If it is such an appropriation, § 101 is invalid under art 4, § 30.
At the outset, it should be recognized that the term public purpose should not be narrowly construed by the courts, for the determination of what
As stated in Gregory Marina, Inc v Detroit, 378 Mich 364, 394; 144 NW2d 503 (1966):
"[Determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people.”
The fact that certain individuals benefit from the appropriation does not necessarily imply that the appropriation is lacking a public purpose. The question is whether society at large has an interest in having those individuals benefited. Gaylord v Gaylord City Clerk, 378 Mich 273, 299-300; 144 NW2d 460 (1966).
In this regard, it is highly relevant that the method of financing presidential elections established in the Federal Election Campaign Act of 1971, 26 USCA 9001, which is analogous to the provision before us, was held by the United States Supreme Court to be well within the "general welfare” clause of the United States Constitution, art I, § 8, in Buckley v Valeo, 424 US 1; 96 S Ct 612; 46 L Ed 2d 659 (1976):
"[P]ublic financing of Presidential elections as a means to reform the electoral process was clearly a
Similarly, the Michigan Legislature has determined that public financing of gubernatorial elections is for the general welfare of the public, and it is well within the Legislature’s powers to so determine.
Chapter 3 may be said to have any of the following beneficial public purposes:
1. To allow gubernatorial candidates to become less dependent upon financial support from special-interest groups, thus promoting the appearance and reality of an executive with the welfare of the public at large in mind.
2. To encourage greater participation in gubernatorial campaigns by reducing financial obstacles for candidates with less fundraising abilities, and by enhancing the importance of smaller contributions.
3. To promote the dissemination of political ideas to the electorate by gubernatorial candidates who have been encouraged to campaign for the governorship.
We can only conclude that chapter 3 of the act, specifically § 101, does not constitute an appropriation for a local or private purpose, and thus did not require a two-thirds majority in both houses for passage under art 4, § 30.
"Michigan cases have steadily broadened the concept of public purpose. In Miller v Michigan State Apple Commission, 296 Mich 248 [296 NW 245 (1941)], a State tax on apples, which was used to promote sale of Michigan apples, was upheld because stimulation of the State’s apple industry would be beneficially reflected throughout the State. In Hays v Kalamazoo, 316 Mich 443 (169 ALR 1218) [25 NW2d 787 (1947)], the expenditure of general funds of a city for membership in the Michigan Municipal League, a private nonprofit corporation established to advise and lobby for cities and villages in the State, was upheld as being for a public purpose. In Sommers v Flint, supra [355 Mich 655; 96 NW2d 119 (1959)], a transfer of city property to the Federal government, without consideration, for use as an armory was upheld, based upon mutuality of obligation between the United States and the city in the field of national defense.”
See also Gregory Marina, Inc v Detroit, supra, holding that the construction of marinas in which boatwells would be leased under non-transferable, perpetually renewable leases was a public purpose.
Certified Question VI — Constitutionality of Section 101
Section 31, article 4 of the Michigan Constitution of 1963 provides in pertinent part as follows:
"The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill' for items not in the budget except bills supplementing appropriations for the current fiscal year’s operation.”
We are asked in certified question VI whether § 101 of the act is an appropriation bill within the meaning of art 4, § 31. If § 101 is an appropriation bill, it is invalid as having been passed prior to the passage of general appropriation bills.
Art 4, § 31 defines an appropriation bill as follows:
"Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill.”
Our central question therefore is whether the political reform act "[requires] an appropriation to carry out its purpose”.
Little analysis is needed to demonstrate that the central purpose of chapter 3 of the act, and § 101 in particular, requires an appropriation. That purpose is to help finance gubernatorial campaigns with state funds through a voluntary check-off system from the state income tax, § 101(2), the establishment of a state campaign fund through the transfer of an amount equal to the sum checked off by taxpayers to that fund, § 101(4), and the granting of authority to the state treasurer to issue warrants on the state campaign fund to pay appropriate amounts of money to qualified gubernatorial candidates, § 102(5). Therefore, § 101 constitutes an appropriation bill which is invalid under the provisions of art 4, § 31 in that it was enacted prior to certain general appropriation bills. See also Boards of County Road Commissioners v Board of State Canvassers, 50 Mich App 89, 95; 213 NW2d 298 (1973), aff'd 391 Mich 666; 218 NW2d 144 (1974), and MCLA 21.9; MSA 3.289.
In Oakland, dealing with a statute which purported to be an appropriation bill, but which did not take effect during the ensuing fiscal year,
The Court felt that such construction avoided conflict with art 4, § 31, for if such a provision were to be effective as an appropriation, the Legislature would be unable to match revenues with appropriations as is required under the Constitution.
Section 101(4) presents a very similar situation. That section reads as follows:
"(4) An amount equal to the amounts designated under subsection (2) each year is appropriated from the general fund of the state to the state campaign fund. The amounts appropriated under this section shall not revert to the general fund but shall remain available to the state campaign fund for distribution without fiscal year limitation except that any amounts remaining in the state campaign fund on December 31 immediately following a gubernatorial general election shall revert to the general fund.”
This provision is a continuing appropriation, i.e. an appropriation that does take effect in the ensu
After the ensuing fiscal year, in which revenues can be matched with the appropriation, the conflict with art 4, § 31 created by such a statute is identical with that created by the type of provision found in Oakland; in both situations, the budgetary procedure required by the constitutional provision becomes impossible.
Therefore, under the rationale of Oaklandthere can be an appropriation to the state campaign fund, only for the ensuing fiscal year but not thereafter, appropriations necessarily being made on a year-to-year basis.
Certified Question VII — Financial Disclosure
We are asked in certified question VII whether sections 131
"impose the same burdensome disclosure requirements on all public officials, without regard to their geographical jurisdiction or official duties.” Brief of Michigan State Grange, et al., p 41.
Their argument is that the statute is overinclusive because it:
"imposes a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims.” Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif L Rev 341, 351 (1949).
The analysis of an overbroad classification differs from the more common equal protection challenge to separate classifications. While separate classifications are subjected to challenge on the basis that there is no legitimate state reason for making a differentiation between members of the separate classes, the question that must be answered in an overbroad classification case is: Is the state’s grouping of all individuals into a single class rationally related to the furtherance of a legitimate state interest. It is as reprehensible for the law to separately classify individuals who ought to be treated equally as it is for the law to fail to separately classify individuals who ought to be treated differently. While the drawing of lines need not be done with "mathematical nicety”, the lines must be drawn for some rational reason.
We proceed with our analysis of the lines drawn and the burden imposed. Section 131 places into a
The burden imposed concerns public disclosure of an individual’s private financial affairs. At this juncture it is both convenient and necessary for us to depart from the analysis of the equal protection problem in order to discuss the right to privacy issue.
This Court has long recognized privacy to be a highly valued right. De May v Roberts, 46 Mich 160; 9 NW 146 (1881). No one has seriously challenged the existence of a right to privacy in the Michigan Constitution nor does anyone suggest that right to be of any less breadth than the guarantees of the United States Constitution.
The United States Supreme Court has recognized the presence of constitutionally protected "zones of privacy”. Griswold v Connecticut, 381 US 479, 484; 85 S Ct 1678; 14 L Ed 2d 510 (1965); Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). These zones have been described as being
We reject the notion that an individual’s entry into the governmental arena waives the right to privacy. New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), insures the public an opportunity to make nonmalicious criticisms of a public official’s official conduct. Those seeking public office are well advised to recall the words of Harry S. Truman:
"If you can’t stand the heat, stay out of the kitchen!”
Public officials must recognize their official capacities often expose their private lives to public scrutiny. However, we see a great difference between "unavoidable exposure” and "compelled disclosure”. We reject any notion that the Sullivan case can be read to require public officials to fuel the fires of those who seek to roast them.
The right to privacy includes certain activities which are fundamental to our concept of ordered liberty. Rights of this magnitude can only be abridged by governmental action where there exists a "compelling state interest”. Roe, supra, 152, 155. Kropf v Sterling Heights, 391 Mich 139, 157-158; 215 NW2d 179 (1974).
It is argued by those seeking to uphold the constitutionality of these provisions that disclosure of specified governmental official’s financial affairs is necessary to further a legitimate and compelling state interest. We agree. Disclosure assists in pre
Having determined that the state is possessed of a compelling interest in seeking disclosure of financial affairs, we must establish whether the means employed are sufficiently narrow. Even when motivated by a compelling reason, the abridgment of such rights must be accomplished by the least intrusive method.
"[T]he governmental purpose * * * cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v Tucker, 364 US 479; 81 S Ct 247; 5 L Ed 2d 231 (1960).
The encroachment must be shown to be necessary to, not merely rationally related to, the accomplishment of the state interest. Griswold, supra, 497.
With regard to at least some of the individuals listed in § 131 most of the information required by § 132 to be disclosed appears to be sufficiently narrow and necessary to the accomplishment of the state interest. The act contains certain threshold limits. Small amounts of income, debt, real estate and gifts need not be disclosed. Even when the threshold limits are reached the exact numerical amounts or values need not be disclosed to the public (except for the information required by subsection [e] which is to be filed with the Secre
A notable exception exists regarding the language in § 132(1) which requires individuals to report information concerning "what they know or have reason to know” about members of their immediate family. In our opinion this language and similar language contained in § 132(2) present very real problems of vagueness. As the statute imposes criminal penalties for violations, due process requires that the statute provide adequate notice to a person of ordinary intelligence of conduct that is illegal. We believe the quoted language lacks the specificity required to alert individuals to the responsibility imposed upon them to discover the information required to be disclosed. While we agree with those who argue in support of the constitutionality of this section that immediate family members were included in the disclosure provisions in order to prevent the individual from circumventing the disclosure provisions by transferring an interest held by that individual to a member of his immediate family, we believe the same result may be accomplished with more precise language. See Ill Rev Stat 1971 ch 127, § 604a-
However, despite the fact that we find the disclosure provision to be sufficiently narrow for some officials, we are convinced that for many others listed in § 131 the disclosure requirements mandate production of information which is not "necessarily related” to achieving the state interests involved. For those minor officials whose sphere of influence is geographically limited or whose functions are routine and ministerial, we find the disclosure provisions of § 132 to be overbroad.
Similar considerations led the California Supreme Court in the case of Carmel-By-The-Sea v Young, 2 Cal 3d 259, 269; 85 Cal Rptr 1; 466 P2d 225 (1970), to strike down a 1969 political reform act containing financial disclosure provisions.
"The financial disclosure requirements of the statute now before us encompass indiscriminately persons holding office in a statewide agency regardless of the nature or scope of activity of the agency, as well as those whose offices are local in nature * * * . No effort is made to relate the disclosure to financial dealing or assets which might be expected to give rise to a conflict of interest; that is, to those having some rational connection with or bearing upon, or which might be affected by, the functions or jurisdiction of any particular agency, whether statewide or local, or on the functions or jurisdiction of any particular public officer or employee.”
In light of our comments concerning the over-breadth of the intrusion into the right to privacy of some of the officials listed in § 131, we return to our analysis of the equal protection question. We find the single class created by § 131 to be an arbitrary, capricious, and unreasonable grouping and, therefore, a violation of the equal protection
As we conclude that the classification is over-broad, the entire statutory scheme set forth in §§ 131 and 132 for disclosure by public officials must fall.
Finally, §§ 131 and 132 are challenged on the basis that they violate the constitutional provisions against unreasonable searches and seizures. This section of the Constitution does not forbid all searches and seizures but only all unreasonable searches and seizures. Elkins v United States, 364 US 206, 222; 80 S Ct 1437; 4 L Ed 2d 1669 (1960).
"We have recently held that 'the Fourth Amendment protects people, not places,’ * * * and wherever an individual may harbor a reasonable ^expectation of privacy,’ * * * he is entitled to the free from^unreasonable governmental intrusion.” Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968). (Emphasis added.)
In our discussion concerning the right to privacy, we found that the government could make reasonable intrusions upon that right. Therefore, if we assume, arguendo, that compelled disclosure is a search, we believe that it would be a reasonable search if it is accomplished by the least intrusive method.
Certified Question VIII — Disclosure as Oath
The Legislature requests us to test the constitutionality of §§ 131 and 132 against the provisions of art 11, § 1 of the Constitution. That article contains the oath of office required to be taken and
"No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.”
We find no conflict between §§ 131 and 132 of the act and this section of the Constitution.
The oath, affirmation or religious test provision contained in art 11, § 1 was designed to protect a right which the citizens of our state and nation hold most dear: freedom of belief. While the government may legitimately impose restrictions upon the expression of one’s beliefs, it is wholly without power to compel or require a citizen to adopt a belief. Cases involving "loyalty oaths” fall within that category.
Essentially in both Dapper v Smith, 138 Mich 104; 101 NW 60 (1904), and Harrington v Secretary of State, 211 Mich 395; 179 NW 283 (1920), the Court upheld the right of belief of the citizen in the face of the government attempt to force the citizen to make a decision. In Harrington, the Court held that the government could not force a potential candidate to choose a political philosophy. In Dapper, the potential candidate could not even be forced to decide if he wanted to be a candidate. The situation we have in this case is vastly different from that in Dapper and Harrington. Sections 131 and 132 do not require the potential candidate to form a belief or choose between differing thoughts. The financial disclosure requirements are not analogous to the filing of an oath, affirmation, or religious test. We believe they are more analogous to affidavits required by MCLA 168.557; MSA 6.1557 (change of
Certified Question IX — Lobby Disclosure: Free Speech
The issue raised by certified question IX is whether chapter 5,
Chapter 5 requires lobbyists and lobbyist agents
(1) all expenditures in any way related to lobbying, including expenses for advertising and mass mailings;
(2) all financial transactions between the lobbyist and public officials or their families over $50, except those in the ordinary course of business;
(3) each contribution or membership fee of $500 or more in the current fiscal year paid to a lobbyist whose primary purpose is lobbying, with the name, address, and occupation of the source of such funds; and
(4) a brief description of the lobbying activities engaged in.
Public officials are to be notified when their names are included in a lobbyist’s report and quarterly and annual summaries of these reports are to be published and given wide public dissemination.
Lobbyists are to obtain and preserve for five years all the documentation necessary for the information required in these reports filed with the Secretary of State. Lobbyist agents are in turn responsible for furnishing their employer (the lobbyist) with a full accounting on a quarterly basis of all lobbying and expenditures related thereto which must be included in the lobbyist’s quarterly report. The information disclosed in these reports may not be used for commercial purposes, although it can be used for the solicitation of campaign contributions.
Lobbyist agents may not accept employment on a contingent fee basis and gifts by lobbyists and lobbyist agents to public officials and their families are prohibited. In general, public officials are prohibited from accepting compensation for lobbying.
We find with regard to regulation of lobbyist activities involving direct communication with officials in the executive and legislative branches that the disclosure provisions are not violative of the constitutional provisions cited above. We find more troublesome, however, the disclosure provisions as they relate to the "soliciting of others to communicate” with officials. Resolution of any problems which may arise respecting the interpretation and application of this language is better deferred until the issues are raised in a factual context.
The right of freedom of speech, of association, the right to consult for the common good, to instruct representatives, to petition the government, are all fundamental. As we have indicated elsewhere in this opinion, when the government seeks to regulate a fundamental right, the regulation may be upheld only if justified by a compelling state interest. While requiring lobbyists to disclose information constitutes regulation of fundamental rights, compelling state interest justifies such regulation. Both the electorate and public officials have a right to be informed of those interests represented by lobbyists. The constitutionality of legislation regulating the activities of lobbyists
Because criminal penalties attach to violations of this statute, fair notice must be provided to a
The statute upheld in Harriss differs from the Michigan act in two respects:
First, the Federal lobbying act as construed by the United States Supreme Court in Harriss covered only the so-called professional lobbyists. Chapter 5 requirements of the Michigan legislation apply not only to those who are paid or pay others, but also those who lobby in their own behalf, provided their expenditures for such activities exceed $1,000. Second, unlike the Federal lobbying act, the requirements of chapter 5 are not restricted to direct communications between the lobbyist or lobbyist agent and the public official. Under § 12(3) lobbying is also defined as "soliciting others to communicate with an official in the executive branch or an official in the legislative branch for the purpose of influencing legislative or administrative action”.
In our opinion, the rights of legislators, public officials and the public to know the source of monies expended to influence governmental action
Certified Question X — Lobby Disclosure: Equal Protection
The final question is whether restrictions placed upon lobbyists and lobbyist agents deny them equal protection of the law. This issue concerns the definition of "lobbyist” contained in § 12(4) and the exceptions to the definition of "lobbyist” carved out by § 12(6).
Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1) 396 Mich 123; 240 NW2d 193 (1976).
MCLA 169.1 etseq.; MSA 4.1701(1) et seq.
Const 1963, art 4, § 24 provides in pertinent part:
"No law shall embrace more than one object, which shall be expressed in its title.”
MCLA 169.40; MSA 4.1701(40).
MCLA 169.31; MSA 4.1701(31).
MCLA 169.38; MSA 4.1701(38).
MCLA 169.178; MSA 4.1701(178).
The act does not provide a definition of the term "publish”. We may presume that the Legislature intended it to be used in its common and ordinary sense. Hammons v Franzblau, 331 Mich 572, 574; 50 NW2d 161 (1951). According to Webster’s Third New International Dictionary (1971), p 1837, "publish” means "to impart or acknowledge to one or more persons * * * ”.
Const 1963, art 1, §§ 1, 3 and 5 state:
"All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”
"The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.”
“Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”
"(1) 'Person’ means a business, individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, labor organization, company, corporation, association, committee, or any other organization or group of persons acting jointly.” MCLA 169.14; MSA 4.1701(14).
18 USC 608(a)(1).
18 USC 608(c).
18 USC 608(e)(1).
MCLA 169.83, 169.84; MSA 4.1701(83), 4.1701(84).
MCLA 169.91; MSA 4.1701(91).
MCLA 169.61; MSA 4.1701(61).
MCLA 169.93(6); MSA 4.1701(93X6).
MCLA 169.93; MSA 4.1701(93).
MCLA 169.93(7); MSA 4.1701(93)(7).
2 use 431, etseq.
See MCLA 169.55-169.57, 169.92; MSA 4.1701(55)-4.1701(57), 4.1701(92).
Section 95 of 1975 PA 227 provides:
"(1) Except with respect to the exceptions and conditions in subsections (2) and (3) and to loans made in the ordinary course of business, a corporation may not make a contribution or expenditure or provide volunteer personal services which services are excluded from the definition of a contribution pursuant to section 5(3)(a).
"(2) An officer, director, stockholder, attorney, agent, or any other person acting for a corporation or joint stock company, whether incorporated under the laws of this or any other state or foreign country, except corporations formed for political purposes, shall not make a contribution or expenditure or provide volunteer personal services which services are excluded from the definition of a contribution pursuant to section 5(3)(a). A corporation may make an expenditure solely for the establishment and administration of a separate segregated corporate political education fund to be utilized for the sole purpose of making contributions to and expenditures on behalf of candidate committees.
"(3) Contributions to and expenditures from a fund established under subsection (2) shall be limited to money or anything of ascertainable value obtained through the voluntary contribution of the employees of the corporation under which the fund was established. A corporation which is nonprofit may also obtain money or anything of ascertainable value received through the contributions of members, who are individuals, of that corporation. The fund may not make a contribution or expenditure by utilizing money or anything of ascertainable monetary value obtained by using or threatening to use job discrimination or financial reprisals, or obtained as condition of employment.
"(4) A person who knowingly violates this section is subject to section 176.” MCLA 169.95; MSA 4.1701(95).
Section 5(1) of the act defines "contribution” as follows:
" 'Contribution’ means a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, donation, pledge or promise of money or anything of ascertainable monetary value, whether or not conditional or legally enforceable, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned.” MCLA 169.5(1); MSA 4.1701(5)(1).
Section 7(1) of the act defines "expenditure” as follows:
" 'Expenditure’ means a payment, donation, loan, pledge, or prom
Section 2(2) defines "ballot question” as follows:
" 'Ballot question’ means a question which is submitted or which is intended to be submitted to a popular vote at an election whether or not it qualifies for the ballot.” MCLA 169.2(2); MSA 4.1701(2X2).
Const 1963, art 1, §§ 1, 3, and 5 are quoted in fn 9, supra.
Section 2 states:
"No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.”
As relating to corporate contributions, 1913 PA 109, § 14, now MCLA 168.919; MSA 6.1919:
"No officer, director, stockholder, attorney, agent or any other person, acting for any corporation or joint stock company, whether incorporated under the laws of this or any other state or any foreign country, except corporations formed for political purposes, shall pay, give or lend, or authorize to be paid, given or lent, any money belonging to such corporation to any candidate or to any political committee for the payment of any election expenses whatever.”
People v Gansley, 191 Mich 357; 158 NW 195 (1916), decided by an equally divided Court.
Williams v Rhodes, 393 US 23, 31; 89 S Ct 5; 21 L Ed 2d 24 (1968).
Katzenbach v Morgan, 384 US 641, 657; 86 S Ct 1717; 16 L Ed 2d 828 (1966).
Monitor Patriot Co v Roy, 401 US 265, 272; 91 S Ct 621; 28 L Ed 2d 35 (1971).
New York Times Co v Sullivan, 376 US 254, 270; 84 S Ct 710; 11 L Ed 2d 686 (1964).
First National Bank of Boston v Attorney General, 362 Mass 570; 290 NE2d 526 (1972); Schwartz v Romnes, 495 F2d 844 (CA 2, 1974).
Red Lion Broadcasting Co, Inc v FCC, 395 US 367; 89 S Ct 1794; 23 L Ed 2d 37 (1969).
Cf. People v Gansley, supra.
MCLA 169.101; MSA 4.1701(101).
This quotation is from the opinion written by then Chief Justice Thomas M. Kavanagh, concurred in by Justices Black and Smith. Justice Adams, while dissenting on other grounds, agreed, with Chief Justice Kavanagh’s statement of the rule:
"I agree that the determination of what constitutes a public purpose is primarily a legislative function and that there has been no abuse by the legislature of that function in its determination that the construction and operation of marinas is within the broad concept of public purposes.” 378 Mich 364, 409.
Most of the oases holding that the Legislature had made appropriations for private purposes are older cases which apparently took a narrower view of public purpose than the more recent cases cited above. See Michigan Corn Improvement Ass’n v Auditor General, 150 Mich 69; 113 NW 582 (1907) (an appropriation to a private association working for the improvement of corn crops was an unconstitutional attempt to devote public funds to a private purpose); Michigan Sugar
There is one relatively recent opinion holding that the Legislature had appropriated for a private purpose in violation of art 4, § 30. In Advisory Opinion re Constitutionality of PA 1966, No 346, 380 Mich 554; 158 NW2d 416 (1968), the Court held that the act creating the Michigan State Housing Development Authority was in part valid and in part invalid as an appropriation for private purposes. Specifically, the Court held that the appropriation for the creation and administration of the Housing Authority was for a public purpose, but that the appropriations to the housing development fund and the capital reserve sinking fund were not for a public purpose. The housing development fund was to be used to make loans and advances to private corporations engaged in housing development. The capital reserve sinking fund was to be used to repay bonds issued for the same purpose.
This holding is not inconsistent with the result we reach today since the goals of chapter 3 are more closely and clearly related to the welfare of the public at large than the provision overturned in Advisory Opinion re Constitutionality of PA 1966, No 346, supra.
Under Michigan law, the "ensuing fiscal year” is the fiscal year commencing July 1 and closing June 30. See Oakland, 392 Mich 618, fn 4.
See Oakland, 392 Mich 620, fn 5.
MCLA 169.131; MSA 4.1701(131).
MCLA 169.132; MSA 4.1701(132).
§§175, 180; MCLA 169.175, 169.180; MSA 4.1701(175), 4.1701(180).
Section 12(3) of the act defines "lobbying” as follows:
“ 'Lobbying’ means communicating directly or soliciting others to communicate with an official in the exclusive branch or an official in the legislative branch for the purpose of influencing legislative or administrative action. Lobbying does not include communications by a person to its own paid members, or shareholders even though the purpose of communications is to solicit such members or shareholders to communicate with officials; or the providing of technical information by a person who is not a lobbyist or an employee of a lobbyist solely at the request of an official in the executive branch or an official in the legislative branch.” MCLA 169.12(3); MSA 4.1701(12X3).
Sections 12(4) and 12(5) state:
"(4) 'Lobbyist’ means a person whose expenditures for lobbying are more than $1,000.00 in value in any 12-month period, or the state or political subdivision which contracts for a lobbyist agent.
"(5) 'Lobbyist agent’ means a person who receives compensation, reimbursement of actual expenses, or both, in a combined amount in excess of $1,000.00 in any 12-month period for lobbying.” MCLA 169.12(4), 169.12(5); MSA 4.1701(12X4), 4.1701(12)(5).
Federal Regulation of Lobbying Act, 60 Stat 812, 839 (1946); 2 USC 261-270.
MCLA 169.12(4), 169.12(6); MSA 4.1701(12)(4), 4.1701(12X6).
Michigan Election Law, MCLA 168.1 et seq.; MSA 6.1001 et seq.
Dissenting Opinion
(dissenting). A majority of the Court having expressed the opinion that this legislation is ineffective as violating the one-object limitation, the expression of any other or further opinion at this time is inappropriate.
Dissenting Opinion
(dissenting). The Constitution permits an advisory opinion as to the constitutionality of legislation only "after it has been enacted into law”. Const 1963, art 3, § 8.
The words "after it has been enacted into law” were proposed as an amendment on the floor by delegate (now Secretary of State) Austin who stated that the purpose was to "prevent the supreme court from getting involved until the legislative process was completed and they would be working with a law rather than some bills or proposals for legislation.” 1 Official Record, Constitutional Convention 1961, p 1548.
This further opinion, on questions 2-10, may assist the Legislature in its consideration of proposals for enactment of a revision of the act declared unconstitutional in Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123; 240 NW2d 193 (1976). However, in expressing an opinion regarding the constitutionality of a matter again on the legislative agenda, the Court becomes involved in the legislative process contrary to the purpose of the after-enactment limitation. Further advice should not be given until the legislative process is completed.
