Blank v. Department of Corrections

103 Blank v BLANK DEPARTMENT OF CORRECTIONS (Calendar 8). Argued No. Decided Docket No. 109477. October 1999 20, 2000. June prison brought an action in the Arthur R. Blank and other inmates validity Court, challenging prisoner Circuit of certain Jackson adopted by Department They visitation rules of Corrections. department asserted that the had enacted violation of oversight provisions of the Administrative Proce- court, Act and that the rules were unconstitutional. The dures Nelson, J., Appeals, A. The Charles denied relief. Court P.J., JJ., affirmed, holding Murphy and and M. F. McDonald, Sapala, apa §§45 and 46 of the are unconstitutional and void. Addition- ally, procedures they establish, effectively empow- it held that the ering Joint Committee on Administrative Rules to veto adminis- rules, satisfy presentment require- trative fail to the enactment and 1, 22, §§ ments of Const 26 and 33. It further held that authority granted to the Joint Committee violates the doctrine separation powers, provision presentment containing no approval Legislature’s to the Governor for of the veto of a rule. Its holding §§ severed and and from the rendered them void. department’s The Court found the visitation rules valid and enforceable, compliance having promulgated in been with the department’s enabling statute, procedures as well as with the enun- App (1997) (Docket 188881). apa. in the ciated No. petitioners appeal. The separate opinions, Supreme Court held: and 46 Sections 45 of the Administrative Procedures Act are powers separation unconstitutional as violative of the and enact- presentment provisions ment and Constitution. However, they may be the remainder of the so as severed from act Legislature pro- the entire act not to render unconstitutional. statutory grant vided sufficient standards in its Department promulgate of Corrections to administrative rules so Finally, delegation passes that the constitutional muster. the rules at issue are valid constitutional. 462 Mich joined by Corrigan Justice Kelly, Justices stated that Young, 24.245(8)-(10), (12); 3.560(145)(8)-(10), (12) MCL MSA and the first 24.246(1); 3.560(146)(1) unconstitutional, sentence of MCL MSA are may be severed from the rest the Administrative Procedures rendering Legisla- Act without the entire act unconstitutional. The authority approve disapprove pro- ture’s reservation of to or rules posed by agencies Michigan executive branch violates the Constitu- pursuant authority inherently legisla- tion. Action taken to that is comply in tive nature and does not with the enactment and

presentment requirements usurps of the constitution. It the role of legislative process separation the in Governor the and violates the powers provision. Legislature provided of The sufficient standards statutory grant authority Department in its of of Corrections promulgate delegation passes to administrative rules so that the department constitutional muster. The at issue are valid and constitutional. Legislature The action of the Joint Committee or the in exercis- ing authority granted inherently the §§ 45 and 46 of the is legislative, and, thus, subject presentment to the enactment and requirements Michigan case, of the Constitution. In this the action Legislature of approving disap- the Joint Committee or the in proving agencies proposed the legisla- rules that have is in essence Legislature engages legislative tive action. When the in action it by enacting legislation. must do so Failure of the Joint Committee presentment or the to do so violates the enactment and requirements, usurps legislative process, the Governor’s in role the separation powers provision. separation and violates the of The powers provision presentment requirements and the enactment and expressed act as limitations on the of the Joint Committee Legislature. and the The cannot circumvent the enact- presentment requirements simply by ment and labeling or charac- terizing something legislation. its action as Accordingly, other than Legislature’s authority the Joint Committee’s and the §§ under and is unconstitutional. any portion invalid, Where severability of an act is found to be generally case, portions In favored. this the invalid of §§ 45 and adversely affecting 46 can be severed without the remainder of the apa. enabling gives department authority pro- act that the the to mulgate delegation legislative power rules is a constitutional powers delegated the executive branch. The to the director of the department, whole, sufficiently pass when read as a are limited to Further, require constitutional muster. the constitution does not an enabling specify great act to detail the standards that an execu- case, promulgating rules. must follow tive branch provided Legislature make it clear that the the the standards promulgate manage department rules to is to director of subject department, limitations and direc- to certain control the provides in context to make the role of detail sufficient tions. This satisfy clearly apparent department and to due the director of process. department promulgated not do The visitation rules delegated authority enabling scope to it. that the act exceed responsibility manage directly They related to the director’s are prisons, with the intent control the state’s consistent arbitrary capricious, enabling act, underlying and are not rationally purpose enabling being act. related to the of the legisla- writing separately, stated that Chief Justice Weaver, Act vio- §§ and 46 of the Administrative Procedures tive veto of presentment provisions of the the enactment and lates powers provi- and, therefore, separation violates its Constitution Further, offending portions creating §§ 45 and 46 sion. from the Administrative Procedures veto are severable constitutionality question delegation of Act. The may day. agencies rulemaking for another be left concurring, PA 108 is unconsti- stated that 1977 Justice Markman, express Legisla- limitations on the it exceeds the tutional because 1963, 4, rulemaking agency art in under Const ture’s involvement 37, expressed will of who it with the the voters § and conflicts Proposal rejected a in 1984. opinion when the focuses on the actual moment The lead jcar participate promulgation Legislature attempts in the to or the validity agency rules, of the authorization for rather than the of by legislative Isolating this members of the branch. such conduct larger Rather, process ignores single the context. moment in the process whether the should be examined to determine the entire rules, approval agency mandating legislative of which was statute presentation require- by bill and met the bicameral introduced ments, is constitutional. authority legislative respect committees to veto With to the of branch, regulations the of the executive the rules 1963, 4, may specifically § in Const art 37 and what is set forth do Comparing 4, role that 1977 PA 108 § art 37 with the no more. jcar Legislature acting attempts without to bestow on the and the Clause, compliance be concluded that Presentment it must with the explicitly impermissible expansion limited of the PA 108 is an 1977 by agency provided in the veto of rules for the role assigned upon powers and, therefore, the an encroachment § 37 Mich by addition, Proposal the 1963 executive Constitution. a, type expressly permit have which would amended art 37 to the approval issue, proposed agency of rules at was rejected people. by the Affirmed. analysis dissenting, in this Justice stated the case Cavanagh, law, which, requires begin Michigan applied, with should when Chadha, than in different outcome occurred INS v US 919 opinion law, (1982), which the §§ on lead relies. Under the and 46 of Administrative Procedures Act are constitutional. Department procedu- When the failed to the Corrections follow requirements scope §§ ral 45 and it exceeded the its authority. Thus, by rulemaking promulgated depart- the the

ment invalid. are pursuant Rulemaking appropriate statutory procedure, though to character, legislation. agencies is not Executive have power only rulemaking they extent that within the act the power upon Thus, Legislature. bounds of conferred them the if delegation authority sufficiently specific, delegation the is the power agency, nonetheless, be valid. will The executive must act prescribed sufficiently delegation within boundaries. If the is not specific subject matter, delegation for the the will be constitution- ally Finally, delegation valid, invalid. if the is but the executive steps bounds, power branch outside its the executive use of will be invalid. Michigan law, they Under not rules do become effective until undergo review the Joint Committee on Administrative Rules. purpose legislate; The effect of committee review is not rather, disapproval quo status maintains the ante. Persons who would be otherwise affected the rules retain same the status because the rules have never been effect at when the time the disapproves. rights committee of the executive branch simi- larly unchanged remain the because executive never had promulgate scope rules outside the of committee Instead, part process. required review. committee review If agency ignores procedural requirements imposed by delegation, terms of has executive exceeded the dele- gated analysis simply Depart- and the to it returns to whether case, ment of Corrections rules be must invalidated. In this department satisfy constitutionally procedural failed to valid proceeded standards of Administrative Procedures it Act when approval. Therefore, without committee the rules cannot stand. concluding policy that committee review involves determina- Chadha, opinion akin those tions to at issue in the lead misses the question simply mark. The is not whether is engaged making policy determinations, Legisla- in but whether the engaged making type policy

ture is in determinations that legislation. analysis need to be made the form of of the lead opinion misconception any legislative is tied to its action taken legislation. However, a subset of the is the action Department taken legisla- of Corrections was more akin to process. pro- tion than is the committee review Because case law agency rulemaking impermissible vides that does not constitute legislation long necessary guidelines followed, as as are review of part promulgation process similarly rules as of the is not legislation, and, therefore, committee review does not violate the Michigan Enactment and Presentment Clauses of the Constitution. clearly distinguishable repeatedly Chadha is also because it made placed importance reference to “the one-house veto” and on the requirement bicameralism of the United States Constitution. Com- clearly thing mittee review is not the same aas one-house veto. composed The Joint Committee on Administrative Rules is of sena- representatives. disapproves rule, tors and When it of a both given opportunity pass joint houses are notice and an to resolution. Contrary positions opinion to the of the lead and the concur- rence, Proposal the defeat of A in the 1984 election has no rele- vance to this case. While the state of the law remains intact when a proposal rejected by voters, rejection proposal of a almost twenty years passage provides after the of the 1963 Constitution no insight adopted relevant into the intent of the electorate who delegates constitution. The to the constitutional convention in 1961 provision voted on a constitutional distinct from the amendment proposed people” and the concerns that caused “the reject proposal necessarily in 1984 were not the same concerns people” adopt part that drove “the 37 as of the 1963Con- gives weight stitution. The law little comments made passage provision after the of a statute or constitutional when represent those expressed comments an intent different than that adopted provision. those who the statute or constitutional To rejection proposal the extent that the aof can even be considered legislative intent, rejection Proposal indicative of A in 1984 weight construing rejection Proposal carries little because A rejection joint aas constitutional of the committee would be clearly contrary language contrary of the to the lan- guage Constitution. Taylor part

Justice took no in the decision of this case. 108 462 Mich 103 Opinion J. Kelly, (by Legal Michigan, Sandra Services of Inc. Prison petitioners. Girard), L. for the Attorney Granholm, General, Thomas M. Jennifer Casey, General, Rick, H. L. Solicitor Matthew defendants-appellees. Attorney General, for Assistant Amici Curiae: Bambery

Daniel for Joint Committee on Adminis- speaker Oppliger Rules and David for Curtis trative Hertel. Przybylowicz, (by Baird,

White, Schneider & P.C. Boyle Baird), A. for Kathleen Corkin Thomas Michigan Education Association. (by

Fraser, Trebilcock,Davis & P.C. Bran- Foster, Employees Zuk), Michigan W. Associa- don State Employ- tion, Association of Governmental Neal, Alfred and Michael L. Zimmerman. ees, granted in review J. We leave this case to Kelly, Appeals 1997 Court of decision1 in which that Court §§45 held unconstitutional and 46 of the Administra- part. tive Procedures Act2 would affirm (apa). I. FACTUAL AND PROCEDURAL BACKGROUND Legislature enacted an amendment to required agencies It administrative to obtain apa. approval joint aof committee of the enacting or the itself before new adminis- part: trative rules. The statute now states relevant 2 1977 PA 108. Mich App 385; NW2d Blank v Kelly, (8) approves proposed If the committee rule within period provided by

the time (6), subsection the committee approval copies shall attach a certificate of its to all bearing except rale copies certificates 1 and transmit those agency. to the

(9) If, period provided by within the time (6), subsection disapproves proposed the committee rule or the com- chairperson impasse mittee certifies an after votes for approval disapproval have failed to receive concurrent majorities, immediately report the committee shall that fact legislature agency. and return the rule to the adopt promulgate shall not the rale unless 1 of following occurs: (a) legislature adopts The a concurrent resolution approving days the rale within 60 after the committee report by, has been respective received and read into the journal of, each house.

(b) subsequently approves The committee the rale. permitted (10) by If expires the time this section and the committee has not taken action under either (8) subsection (9), or proposed then the committee shall return the agency. chairperson chairperson The and alternate shall cause approving concurrent resolutions the rale to be introduced in legislature simultaneously. both houses of legislature place Each house of the shall the concurrent res- directly olution agency adopt on its calendar. The shall not promulgate . following rule unless 1 of the occurs:

(a) legislature adopts The a concurrent resolution approving days the rale within 60 after introduction adoption record roll call vote. The of the concurrent resolu- requires majority tion a of the members elected to and serv- ing legislature. in each house of the

(b) agency proposed resubmits the rale to the com- approves mittee and the committee the rale within the time permitted by this section. ^{[*] [*] [*]} (12) approves If proposed the committee rale within period provided by the time (6), legisla- subsection or the adopts rale, ture approving concurrent resolution Mich 103 Kelly, formally adopt proceed, rule agency, shall if it wishes to pursuant any applicable statute and make written approval adop- adoption. Certificates of record of the copies of the rule. tion shall be attached to at least [MCL 24.245; 3.560(145).] MSA days .

An not file a rule . . until at least 10 shall approval the commit- after the date of the certificate adopts resolution legislature tee or after the a concurrent 24.246(1); 3.560(146)(1).] approving the rule. MSA [MCL advisory promptly requested an Governor Milliken constitutionality opinion amendments, on the stating; declined, but this Court ready “The Court stands carefully, expedi- to examine and to resolve tiously, any controversy appli- that comes to it out of Request setting.” PA 108in a factual cation Advisory Opinion Constitutionality PA on 83, 87; 260 NW2d 436 That opportunity is now before us. Department pro- of Corrections (DOC)

posed a series of administrative rules that limited the type persons prison number and who could visit a proposed inmate. Doc then submitted its rules to the At Joint Committee on Administrative Rules public (jcar). prisoner hearings rights groups, before jcar, prisoners’ persons relatives, and other interested expressed opposition proposed vigorous rules. approve Jcar did not the rules and scheduled more hearings. proposed

Doc then withdrew the rules from jcar adopted approval. them without Doc for- jcar’s warded the rules to the Governor and the Office of Regulatory Reform, which, turn, sent them to the Secretary The of State. rules then became effective jcar approval. without a certificate of Kelly, prison brought events, the wake of these inmates Ingham actions in the Courts, Jackson Circuit validity challenging the new visitation rules. They that DOC had asserted enacted rules in viola- legislative oversight provisions tion of the of the apa and that were the rules unconstitutional. Both courts denied relief. consolidating

After cases, the two the Court of Appeals §§45 It affirmed. held that and 46 of the apa procedures they are unconstitutional and void. The effectively empower establish, to veto jcar satisfy rules, fail administrative the enactment and presentment requirements Michigan of the Constitu- App tion.3 222 Mich 397-398. panel went on to hold

granted separation to JCAR violates the doctrine of powers. provision presentment It no contains approval Legislature’s the Governor for veto of panel’s holding a rule. §§45 Id. at 398. The severed and 46 from them rendered void. Id. at APA Appeals addition, 402. In the Court of found doc’s They new visitation rules valid and enforceable. were compliance promulgated enabling with doc’s stat- procedures ute, as well as with the enunciated in the Id. apa. granted

We leave. 459 Mich 879

II. ANALYSIS A. CONSTITUTIONALITY OF PARTS OF §§ 45 AND §§45 The first issue before us is whether and 46 of by requiring violate the Constitution Discussed below, part n(A). 103 462 Mich 112 Kelly, J. joint legislative committee, or the

that a making approve rules. In administrative itself, new recognize that we exercise our determination, I this power when unconstitutional to declare a statute Campbell, Wyant & v Gauthier the violation is clear. Foundry 515; 104 NW2d Co, 510, Cannon constitutionality (1960). of stat- 182 We review McDougall 15; Mich Schanz, v utes de novo. NW2d 148 provision Michigan Constitution contains

The among separates powers three of the state provides: government. It branches of state powers government into three The are divided judicial. person legislative, executive and No branches: powers powers exercising branch shall exercise of one except expressly properly belonging to another branch as 1963, 3, provided § art in this constitution. [Const 2.] Michigan The Constitution vests the Representa- power in the Senate and the House of pro- § 1. constitution 1963, 4, tives. Const art The law without the con- “[n]o vides that bill shall become majority elected to and currence of a of the members serving § art 26. In 1963, 4, in each house.” Const “[e]very passed legislature shall addition, bill presented governor before it becomes be provisions art law . . . .” Const 33. These present- 4, are the enactment and of Const requirements Constitution.4 ment requirements Supreme discussed the similar The United States Court Immigration v & Naturalization Service the federal constitution in Chadha, 919, 957-958; (1983): 2764; S Ct 77 L Ed 2d 317 462 US Clauses, requirement, the Presi- The bicameral the Presentment veto, Congress’ power veto were dent’s and the to override a Opinion by Kelly, Legislature’s statutory delegation adopt agencies regu to executive branch purpose lations with of consistent the the statute separation powers provision. does the not violate of Optometry, Bd State Examiners 331 Coffman of (1951); Quality Mich 50 NW2d 322 re 582; In Ser of Regulated vice Standards Telecommunications App (1994). Services, 607; NW2d 142 516 Legislature, upon The issue here is whether the dele may gating authority, approve right such retain the disapprove proposed by executive branch .5 agencies Supreme The United States Court has ruled that permissible oversight such is not because of the presentment requirements bicameralism and of the Immigration federal constitution. & Naturalization Chadha, Service v 462 919, 956; US 103 S Ct 2764; 77 L Ed 2d the Court Chadha, addressed constitutionality passed by the of a resolution the Representatives pursuant United States House of Nationality § 244(c)(2)6 Immigration Act, seq. USC 1101 ney The et resolution overrode Attor- suspend deportation General’s decision to of an individual. Representatives’

The Court of found the House inherently legislative sup- action was in nature. For enduring protect intended to erect checks on each Branch and to people improvident power by mandating from the exercise of prescribed steps. preserve checks, certain To those maintain separations powers, carefully defined limits on each Branch must not be eroded. dissent, quite Unlike the I find this issue to different from be that of constitutionality authority delegation rulemaking to executive agencies. branch 1254(c)(2). 8 USC 462 Mich 103 Kelly, J. First, observations. made four port, the Court of alter- and effect purpose “had the action per- and relations . . . duties ing legal rights, Id. at 952. . . branch.” sons . outside supplanted legislative action. Second, the action have obtained the same only way the House could Id. at by enacting legislation. result would have been action involved determina- Third, the House’s 952-954. the constitution Fourth, at 954-955. policy. tions of Id. where one only four instances explicitly authorizes not include can act alone. It does house of Congress house to exercise a for one executive duly over authorized actions of the veto at branch. Id. 955-956. unconstitutional, then held 244(c)(2)

The Court to exercise Congress because it authorized a house Enactment power adhering without to the Clause of the United States Consti- and Presentment held that the House had tution.7 Id. at 958. The Court power approval without exercised legislative By to the President. presentment the Senate and present- and action, it had violated the bicameralism of the federal constitution requirements ment separation powers. “carefully eroded the defined” Id. at 957-958.

1. CHADHA APPLIES TO THIS CASE provi- interpret apply have the discretion to or We differently than the sion our state constitution parallel has done with a Supreme United States Court 7 requires that, before a bill becomes The United States Constitution pass and, then, presented law, Congress it that it be to the both houses of Const, I, § President. US 7. Dep’t Blank Kelly,

provision constitution. Doe v federal NW2d Services, 650, 674, 31; Mich n Social I find States However, here, the United persuasive Supreme reasoning in Court’s Chadha applicable Constitution. argue be not that Chadha should

Petitioners They applied stands this note that Chadha to case. improper proposition Congress to for that it is authority agency, delegate branch to an executive authority. summarily one override that then let house here, that, case differs in Petitioners assert that this authority. any Legislature withdrawing is not authority delegation conditioning Instead, it is its compliance agency’s mandates, with on the apa including review. jcar passed disagree. Legislature and the Gover- signed legislation delegated to DOC nor authority promulgate 791.206; MSA rules. MCL Legislature rule If the invalidates a 28.2276. jcar effectively proposed overrides the it DOC, pur- delegated essence, has to doc. §§ has the suant illusory delegation rulemaking author- to render its provisions ity. Therefore, I at find that the veto in this case are similar issue down struck Chadha.

2. AND 46 OF THE APA AUTHORIZE SECTIONS 45 ACTION LEGISLATIVE applying I find that the case, When Chadha to exercising Legislature the of JCAR the action authority or granted by §§ inher- 45 and is ently subject legislative. is the enact- Therefore, it to presentment requirements of the ment 462 Mich Kelly, My is on the Constitution. conclusion based facts this case. imple-

First, if the can block the jcar rules, mentation rights, it has the to alter the doc parties leg- duties, and relations outside the Legislature assigned islative branch. The to the direc- duty supervise tor of doc to and control the doc. delegated 791.203; MCL MSA It 28.2273. also authority promulgate “[t]he director rules for management penal and control of state institutions.” 791.206(l)(d); 28.2276(l)(d). MCL MSA Consistent statutory assignment delegation, with that doc promulgated the rules issue in at this case. If enforced, the or the JCAR implementation effectively block of the rules would duty with interfere of the director to administer department. By duty affecting of the doc legislative director, who an individual outside branch, the action becomes in nature. supra Chadha, at 952. approve promul-

Second, failure to the rules jcar’s gated policy Policy involves determinations. doc fundamentally determinations are func- App tion. American States Co v DAIIE, Ins 361, 367; 323 NW2d 705 hear- conducted Jcar ings proposed During hearings, on the testimony rules. it prisoner took and received comments from rights groups, prisoners’ relatives, and inter- other parties. hearings, approve ested After the did not jcar hearing. Instead, the rules. it scheduled another I do certainty not know to a the rationale behind its fail- approve reasonably ure to the rules. However, can testimony infer that JCAR considered com- hearings. ments received at the Those deliberations 117 v Opinion by Kelly, J. issues policy the inevitable to consideration equate rules. proposed the that surrounded approve to the failing in jcar’s action Third, nature, inherently by legislative proposed doc methods legislative other supplants it because statutory jcar If lacked its same result. reaching the way that the Legislature authority, then the the rules would promulgation influence the could I find that the Therefore, new legislation. be to enact by 45 and the authority Legislature jcar §§ vested in authority per- to essence, the is, of the and 46 acts.8 legislative form every legislation resembling agree that not action with the dissent may and, therefore, Legislature passing law, con requires that the of a the authority stitutionally rulemaking agencies. delegate How to executive rulemaking and ever, between executive I find that there is a distinction approval process. the JCAR interprets it agency a statute such as the doc When an executive by rule, the promulgating must be taken within a the action administers sense, agency’s enabling action is In that of the statute. confines here, However, Legislature, reserves when the as the statute. “checked” effect, taking power agency there is no rules from itself the to block to Instead, Legisla- Chadha, supra corresponding n 16. at check. See amending equivalent “policy-making or effect action exerts a ture’s repealing ” Assembly Byrne, existing legislation. Jersey New General Therefore, added). 376, 388; (1982) (emphasis such 448 A2d 438 NJ presentment requirements subject of our are to the enactment and actions explained Supreme in Alaska v Alaska Court 1963 Constitution. As the Legis- Voluntary, (Alas, 1980), fact that 606 P2d “[t]he [the

ALIVE power delegate legislative to others who are not bound [the can lature] presentment requirements] mean that it can dele- does not enactment and and, process, escape power the con- gate in the from to itself same operate.” which it must straints under pro- process and a the JCAR review There is a distinction between also an posal committee. Unlike executive into a that is introduced repre- rules, statutory promulgate with authorization to branch discretionary authority pass independent no sentative or senator has Thus, proposal committee does introduced into a when a bills. authority upon any infringed bill, Legislature has not not become jcar particular blocks granted legislator. or the to a When effectively rule, promulgation that action limits of an administrative granted an executive branch revokes

Opinion by Kelly, 3. MICHIGAN’S CONSTITUTIONAL PROVISIONS LIMIT THE LEGISLATURE FROM ACTING UNILATERALLY

UNDER §§ 45 AND 46 OF THE APA I have amicus brief considered the curiae Employees Michigan State It Association. notes that Constitution, unlike its federal counter part, Legislature’s power, is a limitation on the not a grant Advisory to it. on Constitu tionality 240, PA 400 Mich 311, 317-318;254 of Michigan NW2d544 a Absent limitation in the Legislature power legis Constitution, “the has the to particular late within a field.” Federated Publications v Trustees, 75, MSU Bd 83; 594 NW2d491 of (1999). Therefore, asserts, the msea is there no con Legislature’s authority stitutional limitation on the to approve disapprove proposed agency or rules.9 Peti support argument. They point tioners out that the expressly constitution furnishes to the jcar suspend implementation proposed agency the of rules when the is not in session, without gubernatorial approval. Const 37.10 jcar agency. Thus, analogy process propo- the dissent’s the of review to a post legislative inapposite. sal introduced into committee See at n 11. petitioner misapprehend argument The dissent states that I of simply amici curiae. theYet dissent restates what I identified have here as by argument made them. provision The constitutional states: may by legislature joint empower concurrent resolution legislature, acting sessions, suspend committee of the between any regulation promulgated rule or an administrative subsequent atfjoumment preceding regular legisla- the last of suspension longer

tive session. Such continue shall no than the end legislative regular of the next session. Corrections Kelly, may legislate absent That the may not mean that it limitations does constitutional power a manner than that wield in other carefully prescribed by Michigan As Constitution. Legisla- JCAR or the above, the action of demonstrated approving disapproving agen- the rules that ture in proposed is in essence action. To cies have propriety I of such action consider determine separation powers provision. consider, well, I as power provisions vesting in the Gover- executive justice,” judicial power legis- in nor, “one court power Leg- When the lative in the House and Senate. “legislative engages action” it must do so islature Legisla- enacting legislation. Failure of JCAR or the presentment ture to do so violates the enactment and usurps requirements, legis- the Governor’s role in the process, separation powers lative and violates the provision. separation powers Thus, case, provision presentment and the enactment and requirements expressed act as limitations on the Legislature. conclude that the JCAR Legislature cannot circumvent the enactment and presentment requirements simply labeling or char- acterizing something “leg- its other than action as islation.” § 4

Furthermore, I find that 37 of article does not support petitioners’ position. grants § First, 37 independent authority temporarily Legislature implementation suspend promulgated of a rule regular legislative an administrative between authority perma- grant § sessions; nently 37 does not it the implementation Indeed, a rule. a to block of reading suggests §of 37 of article 4 that it serves fair merely prevents proposed stopgap

as a measure. It 462 Mich 103 Opinion Kelly, promulgated rule between sessions from taking effect before the has had the opportunity respond by enacting legislation. grant indepen-

Second, I infer from the limited of people dent in 37 of article that the of Legislature’s power intended to restrict the agency rulemaking. present- over The enactment and requirements, separation pow- ment as well as the provision, power. ers restrict that that, case, conclude in this committee inherently legislative acted in an manner adhering presentment without to the enactment and requirements of the constitution. Const 1963, art consequence, §§ 1, 22, 26, 33. As a it violated Michi- Separation gan’s of Powers Clause. Const §2. My holding is consistent with the decisions of the majority jurisdictions of other that have considered high eight this issue. The courts of different states legislative oversight have declared that of executive rulemaking branch is unconstitutional. Alaska v Voluntary, (Alas, 1980); ALIVE 606 P2d 769 State ex Stephan Representatives, rel v Kansas House (1984); 45; Kan 687 P2d 622 the Justices, (1981); Jersey 121 NH 552; 431 A2d 783 New General Assembly Byrne, (1982); 376; NJ 448 A2d 438 State ex rel Barker v Manchin, 167 W Va 155; 279 (1981); SE2d 622 Missouri Coalition the En vironment v Joint Committee on Administrative (Mo, 1997); Rules, 948 SW2d 125 Gilliam Co v Ore gon Dep’t Quality, Environmental 99; 316 Or (1993), grounds P2d 500 rev’d on other sub nom Ore gon Systems, Oregon Dep’t Waste Inc v Environ Quality, mental 93; 511 US 114 S Ct 1345; 128 L Ed Dep’t J. Opinion by Kelly, (1994); Legislative Research Comm

through (Ky, 1984). Brown, Prather v 664 SW2d 907 reasoning uniformly The courts varied their but provisions oversight resolved violated the Enact- separation ment and Presentment Clauses or the powers provisions in the states’ constitutions. high courts of two states have decided the mat- differently. Industry, ter In Martinez v Labor Supreme & Human Wisconsin Court Relations,11 upheld joint a statute that authorized committee to suspend implementation of administrative rules pending presentment bicameral review and governor. legislature perma- There, to the nently can promulgation

block the through complies act that with constitu- requirements tional of the state constitution. Michi- gan’s provision. has no similar Supreme agreed v Amell,12 Mead the Idaho Court legislature with the dissent in Chadha. It held that the constitutionally reject agency-promulgated could adopted rules on the basis of a concurrent resolution by each house. The court stated that Idaho’s execu- agencies executing tive branch were not the law promulgating Rather, rules. Id. at 667. it reasoned, agencies acting according legislative delega- were to a power. Agency rulemaking tion lacked constitu- protection legislative oversight tional from that other inherently enjoyed. executive activities Id. Therefore, legislature it was constitutional for the to override agency rulemaking adhering activities without formality presentment require- of the enactment and 117 Idaho 165 Wis 2d 660; 687; 791 P2d 410 478 NW2d 582 (1992). 462 Mich 103 Kelly, citing Id., Chadha, ments of the Idaho Constitution. supra at 986-987. Mead,

I decline to follow because the Idaho court recognize passing failed to a resolution over- by promulgated an ride executive branch inherently legislative pointed is an As I action. have purpose action out, such has the same and effect as requires legislation. Michigan The Constitution present- acts adhere to the enactment and requirements ment of the constitution. Const art §§4, 1, 22, 26, 33. “legislative comply case,

In this acts” did not presentment requirements with the enactment and embodied Constitution. Therefore, usurped the acts the role of the Governor in the law- process making separation powers and violated the provision. Accordingly, Const 2. jcar’s authority Legislature’s §§45 and the under and 46 is unconstitutional.

B. §§ SEVERABILITYOF 45 AND46 Having Legislature’s determined that and the jcar’s approve disapprove agency-promul- or gated rules is unconstitutional, I address whether the offending sections can be severed from the APA. alternative is to strike down the entire act as uncon- general severability: stitutional. The rule favors In the construction of the statutes of this state the follow- ing observed, rules shall be unless such construction would be inconsistent with the legislature, manifest intent of the say: that is to any portion application any If of an act or the thereof to

person or circumstances shall be found to be invalid court, invalidity portions such remaining shall not affect the Kelly, applications given the act which can be effect without or portion application, provided remaining invalid such portions inoperable, are the court to be not determined 8.5; and to this end acts are declared be severable. [MCL MSA 2.216.] Tawas,13

In Maki v East this Court noted that MCL requires us to a stat- 8.5; MSA 2.216 consider whether utory provision independent ruled unconstitutional Id. at of the remainder of the act in which it is found. addition, 159. In the Court must consider whether the complete remainder of the act is “otherwise in itself capable carried out without being reference to Id. Therefore, the unconstitutional I make [section].” two-step analysis may to determine whether we statutory provisions sever the invalid from the I consider, first, remainder of the act. whether the Legislature expressed provisions the at issue were not to be severed from the remainder of the act. If not, it did then I must determine whether the portions unconstitutional are so with entangled they others that cannot be adversely removed without affecting operation of the act.

Turning portions relevant 45 and §§ express provision find that there is no in the APA prohibits the Court from severing offending portions.

Next, I find that we can sever portions the invalid adversely 45 and 46 without affecting §§ provisions remainder of Without the authoriz- apa. ing legislative approval, or continues to jcar provide public an opportunity notice and to be 24.208; requires heard. MCL MSA the Mich- 3.560(108) 151; 385 Mich 188 NW2d 593 462 Mich Kelly, J. publish proposed igan Register to administrative 3.560(141) requires public 24.241; rules. MCL MSA hearing adoption hearing and notice of before the of a rule. significant, originally also, I find it that the as apa, provisions leg-

enacted, did not include for JCAR agency-promulgated islative review of rules. See 1969 provisions PA 306. Those were not added until the in provisions amended the APA 1971.See 1971PA 171. original Thus, I find that the of the APA can por- remain effective even after the unconstitutional tions from the remainder of the act are severed. portions offending §§

I would sever the specifically 46 from the APA, 8, 9, subsections 10 and 12 of 4514and the second sentence of subsection 1 provisions remaining §of 46.15The of the APA would remain in effect.16

C. CONSTITUTIONALITY OF THE ENABLING ACT enabling The next issue is whether the act that gives promulgate DOC rules is an unconstitutionally delegation broad power. provide must standards to an administrative for the exercise dele- gated to it. In Blue Cross & Blue Shield (1985), Governor, 51-52;367 NW2d 1 Court stated: 24.245(8>(10), (12); 3.560(145)(8)-(10), (12). MCL MSA 24.246(1); 3.560(146)(1). MCL MSA The sentence reads: “An days shall not . . . file rule 'until at least 10 after the date of the certifi approval legislature adopts cate of after committee or a concur approving

rent resolution the rule.” go Appeals holding I would not far as as the Court of that struck entirety. §§ down both 45 and 46 in their Dep’t Blank v Kelly, evaluating legisla-

The criteria this Court has utilized tive standards are set forth in Natural Resources v Seaman, 299, 309; (1976): 1) 396 Mich 240 NW2d 206 whole; 2) presump- act must be read as a the act carries a constitutionality; 3) tion of the standards must be as reasonably precise subject requires per- as the matter or preciseness required depend mits. The of the standards will complexity subject. Argo Corp Atwood, on the of the Oil 47, 53; pro- (1935). Additionally, 274 Mich 264 NW 285 due requirements pass cess must be satisfied for the statute to Highway Vanderkloot, constitutional muster. State Comm v 159, 174; 220 NW2d 416 In Blue & Shield, Cross Blue the Court considered the constitutionality of a delegation to the Insurance Commissioner. It found that, where the del- simply egation provided the with the commissioner “approve” discretion to “disapprove” risk factors proposed by health care corporations, it was un- constitutional.

Here, statutory delegation authority to the many Director of doc contains more limitations on present than were in Blue & Cross Blue provisions Shield. The at issue state: 1) may promulgate pursuant The director procedures may provide . . administrative act . which following: all of the

a) control, management, operation gen- The department. eral affairs of the

[*] :|: ^[*] d) management penal and control of state institu- tions ....

x x x may 3) promulgate The director further rules with respect department to the affairs of the as the con- director 462 Mich

Opinion J. Kelly, necessary expedient proper siders or for the administration 791.206; of this act. MSA [MCL 28.2276.] delegation When the to doc is in I total, examined find it contains sufficient guidelines First, and restrictions. must director promulgating abide the terms of the in new 791.206(1); 28.2276(1). Second, rules. MCL MSA may only promulgate director rules for the effective management 791.206(l)(a); control and of DOC. MCL may 28.2276(l)(a). pro- Third, MSA the director not mulgate apply jails by municipali- rules that owned persons seventy-two ties that detain fewer than 791.206(l)(d); 28.2276(l)(d). hours. MCL MSA Fourth, may promulgate “necessary the director as expedient proper for the administration of this 791.206(3); 28.2276(3). act.” Fifth, MCL MSA may promulgate prohibit pro- director not rules that parole carrying bation or officer from a firearm on duty prisoner or that allow a to have his name changed. 791.206(4); 28.2276(4). MCL MSA “guidelines”

These are a few but contained in enabling Accordingly, pow- I statute. find that the delegated ers to the director of when as a read doc, sufficiently pass whole, are limited to constitutional muster. require

Furthermore, the constitution does not enabling specify great act to detail the standards an executive branch must follow in promulgating rules. West Ottawa Public v Schools Dep’t App Director, Labor, 237; Mich may provide NW2d 220 stan- “ ‘quite general language, long dards as as the exact policy clearly apparent made ....’” Id. at 243 (citation omitted). Kelly, I

Here, find that the standards make it clear that promulgate manage the director of is to rules to doc subject control to the limitations and direc- DOC, sufficient, tions noted. find such detail in this con- clearly apparent text, to make the role of the director satisfy process. petitioners and to Therefore, due presumption enabling have not overcome the that the delegation act is a constitutional executive branch.

D. CONSTITUTIONALITY OF THE PROMULGATED RULES The final issue is whether the visitation rules promulgated by scope authority DOC exceed the enabling delegated making that the act to it. In its “(1) determination, the Court considers: whether the subject enabling rule is within the matter of the stat- (2) complies ute; whether it with the intent underlying enabling (3) statute; and whether it is arbitrary capricious.” Dykstra Dep’t and Natural App Resources, 198 Mich 484; 499 NW2d 367 (1993), citing Luttrell v Corrections, 93, 100; 365 NW2d 74 subject

I find that the rules are within the matter of enabling enabling delegates authority act. The act promulgate management to DOC to rules for the prisons. control of DOC and the state’s 791.206; MCL may MSA 28.2276.The rules at issue limit who visit prisoners many prisoner may and how times a have directly visitors. Such rules are related to the direc- responsibility manage tor’s and control the state’s prisons. Therefore, the doc’s rules meet the first prong of the test. 462 Mich Kelly, promulgated

I find also that the rules DOC are underlying consistent with the intent authority gave enabling act. The doc broad necessary manage to make rules and control the prison system. 791.206; MCL MSA 28.2276. infer authority grant from that broad specific issues, intended doc to address such as visita- guidelines, tion rules as in this case.

Finally, promulgated I find that the rules that doc arbitrary capricious. are not A arbi- rule not trary capricious rationally pur- if it is related to the pose supra enabling Dykstra, of the act. at 491. Doc proffered has that it set forth the rules “to increase security penal institutions, state’s to assure safety of both the residents of and the visitors to facilities, these and to reduce the incidence of contra- smuggled band into such facilities.” promulgated purposes I find that rules for such are rationally manage related to the of DOC prison 791.206; and control the state’s facilities. MCL MSA28.2276. Therefore, the DOC rules at issue in this Dykstra/Luttrell validity, case meet the test for and I uphold proper. would them as argument Petitioners’ final is that limit- doc’s rules ing prisoners’ rights process, visitation violate to due religion, free exercise of and the effective assistance petitioners’ argument of counsel. I find unfounded Appeals opinion. set reasons forth the Court of App 408-409; Mich also Bazzetta v McGinnis, see supplemented (CA 1997), 124 F3d 774 F3d 382 Dep’t (CA 1998); Bazzetta v Corrections Direc- App tor, 83; 585 NW2d 758 Accord- ingly, Appeals holding I would affirm the Court of on that issue. Blank v Opinion Weaver, C.J.

m. conclusion Legislature’s authority reservation of approve disapprove proposed by executive agencies branch violates the Constitution. pursuant authority inherently Action taken to that legislative comply in nature and does not with the presentment requirements enactment and of the con- usurps Accordingly, stitution. it the role of the Gover- process separa- nor in the and violates the powers provision. tion Therefore, I would hold that § 8, 9, 10, subsections and 12 of 45 and the first sen- tence of subsection 1 of 46 are unconstitutional. portions offending I also would hold may §§45 and 46 be severed from the rest of the apa declaring without the entire unconstitutional. I distinguish holding would from that of the Court Appeals, §§45 because it would not strike down entirety. holding and 46 in their This would sever specified portions remaining of the sections. The portions would remain effective. Legislature pro-

In addition, I would hold that the statutory grant vided sufficient standards in its promulgate to doc administrative rules so passes delegation constitutional muster. Finally, I would hold that the rules at issue in this case are valid and constitutional. Young, JJ.,

Corrigan Kelly, concurred with separately IC.J. write concur Weaver, holding opinion regarding and result of the lead unconstitutionality §§ veto of 462 Mich 103 130 by J. Markman, legisla of the Administrative Procedures Act. The presentment pro veto violates the enactment and tive Michigan art Constitution, 1963, visions of the Const separa §§ 26, 33, and, therefore, violates the 4, 1, 22, powers, § art 2. I 1963, 3, Further, tion of Const opinion por agree offending with the lead that the creating §§of 45 and 46 are tions veto severable from the Administrative Procedures Act. I question leave to another case the of the constitution ality delegation rulemaking agencies. Although

Markman, I concur in the result reached by opinion, separately (1) the lead I write I because: agree opinion’s do not with the lead reliance on the Immigration rationale from & Naturalization Ser- v Chadha, 919; 2764; vice 462 US 103 S Ct 77 L Ed 2d (1983),1 (2) agree and I not do that 1977 PA 108 violates the Enactment and Presentment Clauses of agree However, Constitution. with the opinion’s challenged lead result because the involve- implementation phase ment in the agency rulemaking: (1) exceeds the limits such provided § involvement Const art (2) expressed conflicts with the will of the voters rejected Proposal who A in 1984. 1 Specifically, 8, 9, 10, § subsections of 45 and the first sentence of subsection 1 of 46 1 Chadha, majority Supreme of the United States Court invalidated Immigration Nationality permitted a section of the Act that either Congress, passing resolution, Attorney House of to veto an General’s suspend deportation decision to of an alien. The articulated basis for holding power sought was that the veto to be exercised under the challenged “legislative overriding Attorney section was action” Gen statutorily and, therefore, eral’s exercise of authorized discretion in viola presentment requirements Const, I, tion of the bicameral and of US §§ 1 and 7. by Opinion Markman, dispute concerning from a whether

This case arises Department Michigan could (MDOC) pursuant promulgate legitimately an ena- new rules steps complying bling with certain act2 without first Act the Administrative Procedures under (apa) by challenged proce- 1977 PA The were added 108. require proposed be submitted rules to dures Legislature’s proposing Joint Rules and be on Administrative Committee approved (JCAR) approval if is not or, either the JCAR JCAR Legisla- forthcoming, of the concurrent resolution becoming MCL 24.245- ture, before effective. See 3.560(145)-3.560(146). 24.246; MSA constitutionality inception, Leg- its From pursuant involvement, 108, to 1977PA at the islature’s implementation phase agency rulemaking has been questioned, properly necessary but this Court found it to wait for the issue to arise in an actual case or con- troversy. Request Advisory See on Con- for stitutionality 1977 PA 108, 83; rejected Propo- NW2d436 the voters sal which would have amended Const A, expressly permit Legislature, joint § 37 to aor enabling question provides, alia, The act inter director of the promulgate with the for: mdoc control, operation (a) management, general The and department.

affairs of the management penal institutions, (d) The and control of state cor- farms, probation recovery camps, programs for the rectional youthful supervision 791.206(1); trainees .... care [MCL 28.2276(1).] MSA 462 Mich 103 Opinion by Markman, J. approve disapprove, any thereof, committee provided by any proposed by manner law, rule an agency. administrative implement

In 1995, the mdoc formulated rules to policy, new standardized visitation and commenced procedures promulgating new administrative holding public rules under the This included apa. hearings submitting proposed rules to the initially approve proposed did not jcar. jcar hearing rules, but, before a second scheduled could be conducted, the MDOC withdrew the rules from JCAR consideration and forwarded them to the Governor Regulatory and the Office of Reform. The rules were promulgated approval by then without the JCAR or the Legislature they by when were transmitted the Office Regulatory Secretary Reform to the of State.

Separate injunction, actions for mandamus and an seeking application by to block of the new rules mdoc, were unsuccessful in the trial courts, and were Appeals. consolidated in the Court of The Court of Appeals requirement proposed found that the that agency approved by rules be the JCAR or the Legislature becoming satisfy before effective “fails to presentation provisions the enactment and Michigan Constitution,” and “[i]n a broader separation sense, . . . violates the doctrine of powers.” App 222 Mich 385, 389, 398; 564 NW2d 130 (1997).

n analysis of whether it is constitutional for a require statute to approve that the or the jcar they new administrative rules before can 133 v Opinion Markman, J. pursuant PA entails de effective, to 1977 become presumption that the from the review that starts novo recognizes a violation constitutional, and statute McDougall unconstitutionality is clear. v if its (1999). We NW2d 148 15, 24; Mich 597 Schanz, 461 meaning our constitution for the must look People people v have made” for “what law the search (1998), 109, 119; 587 NW2d Reichenbach, 459 Mich indirectly People Harding, quoting 481, 485; Mich (1884). rule a court should fol- NW 155 “The first ascertaining meaning of words in a consti- low plain meaning give of such is to effect to the tution adopted people who it.” as understood words Dist, 693, 699; v Ann Arbor School Bond NW2d484 opinion reasoning of Chadha follows the

The lead or the that what the JCAR to determine proposed promulgation of it blocks the does when concluding “legislative action,”3 rules is compliance legislation with without this amounts presentment requirements.4 How- the enactment given this Court is not bound to follow ever, Supreme con- Court’s constitutional United States interpreting Constitu- struction when Congress majority presumed that when one House of The Chadha powers properly assigned acting under the United to it acts it is within Constitution; legislative one-house veto was then it held States present subject category legislative to bicameral and actions within the duties, rights, requirements (1) it: altered the and relations ment because action; branch; supplanted legislative persons legislative (2) outside the policy; (4) among (3) was not the situa involved determinations where one House of enumerated in the United States Constitution tions Chadha, supra Congress at 952-958. authorized to act alone. was 4 provides legislation be Constitution shaR The “[a]R passed by legislature biR,” 22, “[ejvery shaR be § and that biR art law,” presented governor it 33. before becomes 134 462 Mich Opinion by Markman, J.

tion, adopt would perceive what I to be the better reasoned approach of Justice White’s Chadha diss ent.6 Justice White made these observations: Legislative veto,

Without Congress is faced with a Hobson’s choice: either to delegating refrain from the nec- essary authority, leaving hopeless itself with a task of writ- ing requisite specificity laws with the spe- to cover endless cial policy circumstances landscape, across the entire or in alternative, to abdicate law-making its function to the independent executive agencies. branch and To choose the major problems former leaves national unresolved; opt to for the latter risks policymaking by unaccountable those not elected fill [Chadha, supra to that role. (White, at 968 J., dissenting).] history legislative

The veto also makes it clear that it has not been a Congress sword with which has struck out aggrandize expense to itself at the of the other branches— the concerns of Madison Rather, and Hamilton. the veto has defense, been a means of reservation of ultimate necessary Congress if designated is to fulfill its role under Article I as the nation’s lawmaker. While the President has objected particular often legislative vetoes, generally those left in congressional the hands of committees, agreed Executive has more often review as the price delegation for a authority. broad sure, To be may preferred President have power, unrestricted but that precisely why could Congress be thought it essential retain a check delegated authority. on the exercise of at [Id. 974.] directly Constitution does not prohibit authorize or Thus, veto. our task should be to determine City Mesquite Inc, See Castle, 293; Aladdin’s 455 US 1070; (1982); S Ct 71 L Police, Ed 2d 152 Sitz v State 744, 758-759; 506 NW2d 209 Rehnquist separate Justice authored a dissent in which Justice White joined. also Dép’t by Markman, purposes legislative veto with the

whether the is consistent Separation principles art. I and the of of of Const] [US throughout and which are reflected in that Article Powers specific the of a We should not find lack the Constitution. surpris- legislative veto constitutional authorization for the disapproval I infer of the mechanism ing, and would not present the to the its absence. From summer from government the States has become an the United beyond contemplation far the of the Framers. endeavor complexity Only century half has the within the last responsibilities grown the Federal Government’s so size of rely Congress legislative greatly that the must on the veto most if not means to insure their as the effective the as the nation’s lawmakers. at role 977-978.] [Id. power power legislative veto not the to exercise approval presidential write new law without bicameral or by veto statute consideration. The must be authorized department may only negative what an Executive inde-

pendent agency proposed. face, has On its the Congress more to make veto no allows one House of law upon presidential the such than does veto confer the President. at [Id. 980.] limiting were concerned with Framers methods [T]he enacting legislation. aware new The Framers were Pennsylvania experience legislature where had requirements passing legisla- to the evaded attached “resolves,”

tion use of criticisms directed at practice this .... There is no record that the Convention contemplated, intended, let alone these Article I requirements someday restrain would be invoked to duly-enacted scope Congressional authority pursuant at law. [Id. 981-982.] it

I fear will now be more difficult a result of the [as majority’s policy “to insure that fundamental decision] society appointed made not an decisions our will be body immediately responsible peo- but official ple .” .. . at [Id. 1002-1003.] 462 Mich Opinion by Markman, J. Because I with do not agree reasoning, gener ally statutorily view a authorized veto over proposed as agency rulemaking unconstitutional. Essentially, procedure represents a veto an such attempt by legislative the branch government of to problem the counterbalance within the modem of delegation administrative state the to the executive government branch of of what was once viewed as legislative power.7 delegations per Such themselves agencies mit executive pervasively regulate, i.e., to legislate, without the satisfying present enactment or requirements ment of the state constitution. For this years Court over the to have countenanced such dele gations essentially yet of legislative authority, to now attempt insist that the cannot to staunch authority loss through this of leg the enactment of a veto, my islative be, would in judgment, alter the balance of separation powers, of the but for existence of the Michigan-specific circumstances8 described in 7 distinguish agency rulemaking authority The current test when is delegation legislative power an invalid of it is a when valid authoriza implementation use tion to discretion in the of the law is whether ena the act, any bling together applicable safeguards, provides with administrative reasonably precise subject requires sufficient standards “as as the matter permits,” rulemaking or so that the can be construed as “confer ring legislative power vesting discretionary, administrative not and as not arbitrary People authority.” Turmon, 638, 644; v 417 Mich 340 NW2d 620 (1983), quoting Dep’t Seaman, 299, 309; Natural v Resources 396 Mich of (1976), quoting Argo Corp Atwood, 47, 53; 240 NW2d 206 Oil v quotation (1935) (internal omitted). 264 285 NW marks See also Westervelt Comm, 412, 436-437; (1978) v Natural Resources Mich 263 NW2d 564 (Williams, J.). interpreting Michigan Constitution, Michigan- Given that we are the specific overriding importance. opinion circumstances are of The lead high eight legislative notes that the courts of sister states have found agency rulemaking respective of vetoes to be unconstitutional under their constitutions, upheld However, state Michigan, while two have states them. like obligated analysis none of states these is to follow federal when Dep’t Corrections of Opinion by Maekman, J. .9 m

part difference the opinion’s lead between central my in the my that, judgment, own is approach and only when the actual moment opinion focuses on lead attempts participate jcar it examines (i.e:, promulgation validity veto rather than the only itself), the legislative conduct members of the authorization such single moment Isolating branch. By contrast, context. process larger ignores process to determine would examine entire City Mesquite, supra interpreting n 5 at own constitutions. See their tally Consequently, respective of the outcomes these decisions 293. nearly state-specific persuasive as circum consideration not so respective supported state constitu Relations, the results under stances Industry, & Labor Human tions. Martinez v Supreme 687; (1992), where the Wisconsin Court Wis 2d upheld 478 NW2d provision (which tempo veto at issue involved rary by legislative committee), suspension that court noted Wisconsin’s impor implied separation powers doctrine and the historical view of its public policy ensuring that for of “elected officials accountable tant [are] Court, Supreme governing public welfare.” at 701. The Idaho rules the Id. constitutionality legislative agency upheld a veto over which also rulemaking, the expressed the view Justice White in his Chadha found that separation powers principles comported in the embodied dissent with 660, 667-669; Arnell, 791 P2d 410 Mead v 117 Idaho the Idaho Constitution. my However, despite reasoning, judgment, their neither sound provision comparable to faced with a of these courts was constitutional popular rejection proposal change 4, of a to § 37 or a Const art Voluntary, contrasting example, provision. 606 in Alaska ALIVE As a statutorily 1980), pre-Chadha (Alas, where a author 775 a case P2d down, specificity legislative court found that the ized veto was struck the dealing express legislative with Constitution used when that the Alaska power powers logically is to the that no other veto “leads conclusion veto implied.” responsible delega legislative the the branch has been That itself powers response proposi may to instant what be its own is no the tion of defending preroga equally vigilant in the has not been tion that this Court defending execu legislative as it those of the of the branch 1963, is here tives states, legislative power “The branch. As Const tive representatives.” Michigan in a a house of is vested senate and State of authority “legislative power,” Legislature delegate the has no to delegation. judiciary to such has no countenance Mich Opinion by Markman, J. mandating approval whether the statute rules, which was bill introduced and met presentation requirements, the bicameral and constitutional. passed by

Here, if the veto had not been Legislature, both houses of the presented had or not been difficulty Governor, I would have no agreeing deficiency be such would constitution- ally purported if Likewise, fatal. the veto to bestow Legislature on or the as a whole, the JCAR, approval to enact new laws without of both houses presentment to Governor, I would not hesi- tate to strike it on down the basis of the enactment or presentment requirements of the constitution. How- applicability requirements ever, I see no of these statutorily participation by jcak authorized implementation previously in the enabling enacted statutes.10

m A Clearly, determining whether 1977 PA 108 is con- requires interpret stitutional us Con- obligation regard stitution. This Court’s in that is to people find law that the made, have see Reichen- supra bach, at 119. This, course, is consistent with expressed by the view Justice White when he stated that the Court’s “task be should to determine whether 10 may way It be trae that other could promulgation proposed pass block the would be a bill and present However, it to the Governor. the current focus should be on what Legislature actually by enacting attempting did PA use 1977 108, and not on what the or could could not have had done it accomplish objective by tried to the same another method. Blank by Markman, purposes is consistent with the of veto Separation of principles Art. I and the

[US Const] through- are reflected in that Article and Powers that at 977. Chadha, supra out the Constitution.” Consti- “Separation powers” Michigan under the more, less, tution is and no than the sum of the no specific provisions or assigning limiting constitutional sep- and functions the three particular powers among Consequently, it government.11 arate branches of state say particular that a statute violates meaningless separation powers the doctrine of without first specific constitutional violation in finding grounded or overall structure of the constitution.12 language Questions spe- that aid a violation of a identifying provision power cific or include: assigning limiting (1) particular what are the limits of the power assigned by the constitution to a particular (2) branch? and manner, powers When viewed in this it becomes clear of the government overlap, three branches of do not but their exercise often any does. The branch does not share of the executive branch’s power implement law, any to legislative and the executive branch does not share power law, of the branch’s to make the but in the exercise of respective powers, may overlap and, consequently, these there be some some amount of tension. 3, 2,§ Const art states: powers government branches; legis- are divided into three

lative, judicial. person exercising powers executive and No of one powers properly belonging branch shall exercise to another branch except expressly provided as in this constitution. However, “separation powers” appears to, statement neither to add from, separation powers already expressed principles nor detract or specific provisions inherent Constitution virtue of the allocating limiting government to be wielded separate government.. sense, branches of In this Const 2§ is analogous principle to the statement of the federalism set forth in Amend- Constitution, already principle ment X of the United States made clear specific provisions the other more of that constitution. 462 Mich 103 Opinion by Markman, J. upon power what limitations the of one branch are implied those to another?13 granted Hence, point determining the whether starting specific 1977 PA 108 with the of the is consistent sum provisions specific constitutional or assigning limiting powers and functions the three branches of among state government, language is the and overall struc- ture of the Constitution. The Con- Michigan Michigan legislative power stitution vests: of the state of (1) Representatives, in the Senate and House of 1963, 4, 1, power Const art the executive in the (2) § judicial Governor, 1963, 5, 1, Const art (3) § power exclusively in justice, 1963, one court of Const 1. 6, art we Against background, § should turn to consideration specific provi- of more constitutional powers. sions granting limiting impor- Of central analysis tance to the 4, instant is art 37. §

B opinion As the lead notes when addressing whether the nondelegation violated, doctrine has been 13 answering questions, important these it is to bear in mind that the only separation powers under issue consideration here is the constitu tionality proposed promulgation involvement of rules by agency pursuant authority by Legis an administrative to bestowed enabling lature under an act. This is not a case where the MDOC contends authority promulgate regarding that it wields inherent to internal rules vis policies prisons itation at it administers. While it would seem self- prison necessarily require running setting evident that a would some inter nally regard visitation, may enforceable “rules” with to which not be on par 24.207; apa, with administrative rules as defined see MCL MSA 3.560(107), permitting and that a scheme uni laterally day-to-day involve itself in such administrative decisions necessa rily implicates separation powers doctrine, present this is not our Nonetheless, concern. when consider 1977 PA 108 in view of MCL 24.207(k); 3.560(107)(k), argument MSA I understand that a reasonable might support proposition provisions have been made in that some assignment of 1977 PA 108 encroach on the inherent of executive 5, to the executive branch Const art § 1. Blank v Opinion by Markman,

implementation through proper grant of a law a authority promulgate necessary rules, once the validly delegated, has been is considered a proper People executive function. Turmon, 638, 644-645, 648-649; Mich 340 NW2d 620 However, Const 37, defines limited role for the involve thereafter itself in agency rulemaking process, stating: may legislature empower concurrent resolution joint legislature, acting sessions, committee of the between suspend any by regulation to promulgated rule or an admin- subsequent agency adjournment istrative to the of the last preceding regular legislative suspension session. Such shall longer regular continue no than legisla- the end of the next tive session. opinion,

Like the lead I draw certain inferences grant authority. Primarily, from this limited of I infer people adopted that the who the 1963 Constitution, permit Legislature empower leg- and chose to to only temporarily suspend islative committee rules, only promulgated legislative those between ses- Legislature sions, did not intend to authorize their unilaterally permanently promulgation block the agency by bestowing upon through leg- rules itself, significantly greater implementa- islation, role in the agency rulemaking express tion of than the limits provision. contained in this Unlike the framers of the United States Constitu- adopted tion, who, the voters of 1963, in our present state constitution were not constrained in ability their to envision the modem administrative yet Legislature state, the limited role for described in 1963, Const art 37 is 4, the one for they expressly provided. Consequently, which there is Mich 103

Opinion by Maekman, implication language negative in this an unavoidable affirmative, of an but circum- that is couched terms power.14 grant that with is, That scribed, authority respect committees regulations veto of the executive the rules may specifically Legislature set branch, the do what is provision forth in and no more. by the Court of

This conclusion is buttressed Appeals agree, observation, with which I “that operating framers were under the of the constitution assumption that the had the constitu- authority agency bills . . . .” tional to affect App Specifically, opinion 1958, Mich 400. an Attorney despite that, concluded a statute General adoption permitting legislature it, of a “the may constitutionally concurrent resolution not sus- pend, promul- abrogate regulation alter or a rule or joint gated a state .... Neither can a legislature OAG, 1958, committee of the . ...” 2 No pp (October 1958). 246, 8, originally that, convention record reveals as proposed, expressly § would have author- delegations agen- ized to administrative regulations general appli- cies to establish rules or cability, reserving in the to sus- principle nothing language There is unusual about the couched reasonably grant imply in terms of an affirmative can also a restriction. As illustration, post that, an most drivers in are aware absent some ing contrary, permissible right light. at a it is to make a turn red Suppose posted particular sign “Right a was at a intersection that read: p.m. permitted turn on red to 7:00 A.M.” it a 5:00 Would not be reasonable turning right light prohibited inference to conclude that on a red at that p.m, though intersection between the hours of 7:00 a.m. to 5:00 even power and, grant restriction is an affirmative with couched terms of any sign, right out the drivers would be able to turn on red at hour of the day? Corrections Opinion by Markman,

pend by legislation, or annul such rules while suspend permitting a to committee such Legislature. rules until the next session of the delegates were informed the Chairman of the Legislative Committee on Powers that the effect of language would be to increase the by legislative could be exercised committee, on the present interpreted basis of then law as the Attor- ney General. 2 Official Record, Constitutional Con- p proposed provision vention 1961, 2419. When the present language, was amended reflect its Legislative Chairman of the Committee on Powers give examples why was asked to 37 was necessary. responded by describing The chairman two department promul- incidents when the revenue had gated quickly “pass rules and the had to legislation injustices to correct what we considered They by legislative that field. . . . acts, corrected only way they which is the could do it . . . .”2 Offi- p Record, cial Constitutional Convention 2970. Attorney Whether the General was correct in con- cluding previously that the was unable agency-promulgated except by legislation affect is not critical here. What is critical is that, while working presumption, carefully under that limited grant only temporarily suspend rules is what the drafted, framers and it is what Clearly, voters ratified. neither the framers of this ratifying pre- constitution, new nor the voters, were they changing cluded from what then believed to be law, the state of the inasmuch as whatever constitu- language they adopted tional highest would be this state’s history supports strongly

law. Hence, this negative implication naturally that flows from the lim- Mich

Opinion Markman, J. by power iting language grant in art in the affirmative of § 37. record, The dissent examines same convention exclusively purpose focusing on the fact that the provide § art was to with some 4, 37 checking rulemaking occurs means of executive that legislative sessions, instead of also consider- between ing the inference drawn from the framers’ conclusion express authority necessary grant that such a was place. in the first The dissent then that concludes support “[t]he does not the concurrence’s ‘lim- record analysis.” grant’ However, ited Post at 163. this rea- scope power soning ignores to affect agency rulemaking that the framers understood to implies that 4, 37, exist absent instead understanding wrong. Although agree framers’ was regard that, with the dissent’s statement with art 4, majority delegates § 37, “a were with concerned ensuring legislative power, limiting it,” rather than that concern from arose the limits on power delegates that those same understood to be imposed provisions the sum of the other constitution. Post at 163. How can one turn to the accept convention record in order to intent, consider grant § that art 37 was intended to additional Legislature, accept but not the framers’ scope legislative power view on the absent art § 37?15 already my reading provi I have noted that own of the balance of the require finding Legisla sions of the 1963 Constitution would not enacting legislation ture would be limited to new in order to block the But, myself

promulgation dissent, rules. unlike the I do not view liberty reject opinion subject to be at the framers’ on that implicit 4, § in art 37. Markman, prevailing “[t]he dissent concedes that view loophole §4,

was that art 37 was needed to close a previously exploited agencies.” executive Post at (emphasis added). according Yet, to the dissent’s interpretation, wholly unnecessary §4, art 37 was inaccurately because the framers viewed the balance limiting of the 1963 Constitution as simply Legislature pass to a law like 1977 PA 108, any eliminating problem being thus with rules promulgated between sessions. This is a divining meaning, novel method of constitutional i.e., inquiring actually not into what the framers intended accomplished, they but into what would have accomplished they thought intended and had differ- ently. construing Instead, this Court should avoid way provision constitution in a that renders a effec- tively inoperative. Speaker House v Governor, 443 § Mich 560, 585; 506 NW2d 4, If art 37 is necessary, grant power, limited, but of additional implication provision, obvious is that, absent this power, could not wield even this limited greater power, let alone a to affect rules that promulgated pursuant previously have been en- enabling acted statutes.

Consequently, agree recognition I with the dissent’s “stopgap” § that art 37 serves as a measure. respectfully disagree However, with the dissent’s provision conclusion that does not foreclose participation by broader in rulemak- ing, Michigan’spresumption statutory or that con- stitutionality requires interpret §4, that we art 37 so constitutionality as to it reconcile with the of 1977PA contrary 108. Such a reconciliation would be plain meaning §4, of the words in art 37 as under- 462 Mich Markman, adopted who the 1963 Constitu- people stood Cooley’s Bond, supra See at 699. As Justice tion. admonishment reminds us:

Every history likely constitution has a of its own which peculiar; interpreted and unless in the to be more less express pur- history, light of this is liable to be made to people poses which were never within the minds of the duty agreeing law to it. . . . is to enforce the [This Court’s] made, people which the have and not some other law may possibly which the words the constitution be made express. supra [Harding, (emphasis added).] at 485 reasonably If 1977 PA 108 could be reconciled comport 37 and history, with art its I would not § oppose so, but the relied on doing justify comport dissent cannot 37 to changing with 1977 PA 108. 16Oddly, places undisputed proposition the dissent reliance on the that enjoys presumption constitutionality, duty a statute of and that we are they statutes, can, bound to construe if we so that conform to constitu requirements. McDougall, supra 24; People Bricker, tional See at v 389 524, 528; (1973). However, Mich NW2d 208 172 the dissent does not even purport interpretation accomplish to offer an of 1977 PA 108 that would Rather, simply such a reconciliation. the dissent announces this well- accepted statutory if, ipso, supported rule as of construction eo it the dis interpretation 4, 4, (“if § sent’s of art 37 the § art 37 can be rec onciled, they be”). proclaim, must Post at 158. It is no “reconciliation” to dissent, provision as does the that this statute and constitutional address jcak nothing 4, prohibits § different circumstances and that in art 37 the process. merely review That is a conclusion drawn from the dissent’s own interpretation 4, and, hence, logically premise § of art 37 cannot be a arriving at the which conclusion from it is drawn. requires There is no I rule construction which am aware that provision yield original meaning of a constitutional in order to save a effectively Following logic, Legislature statute. the dissent’s could by enacting rewrite the entire 1963 Constitution new statutes that would require accept only interpretations this Court to those constitutional that preserve 4, meaning § would the new statutes. The of art 37 cannot be legislation. affected the enactment of new v Opinion by Markman, with the 1963, 4, art § Const comparing After on the JCAR to bestow attempts 1977 PA 108 role that with compliance without acting (and conclude cannot but one Clause), the Presentment expansion impermissible an PA 108 is that 1977 in for the provided limited role explicitly 4, art 1963, Const rules the veto upon powers an encroachment and, therefore, 1963 Constitution. by the the Executive assigned c I constitutionality of 1977 PA assessing the ultimate source by the fact that also guided am same people—the in Michigan, political Constitution the 1963 who ratified people” “we the this constitutionally expressed intentions and whose presented to effectuate—were obligated Court have amended which would Proposal A, with type of permit expressly 37§ at here. The issue proposed agency approval I amendment, rejected proposed voters accorded to must be weight that significant believe rejection. exercise of often dubious am cognizant inaction of attaching meaning face of as silence insofar body, particularly acqui- “legislative as regarded can be court decisions Alpena Co, Power Donajkowski See escence.” prin- (“sound 258-261; (1999) 596 NW2d 574 Mich require statutory construction ciples of intent from its Legislature’s determine the courts of However, rejection a silence”). not from its words, popular a amendment constitutional proposed a my judg- equated, be people cannot of the vote Mich 462 103 Opinion by Markman, merit, because, with silence unlike the tem- porary of passing Legislature, people nature each the state, political sense, of in a are an enduring people” are the institution. “We one unchanging political constant since enactment our constitution.17 appreciate distinction, appreciate

To one must acquiescence is why legislative such a weak indicator cases, intent. A long line state and federal, respect recognized congressional has with to subsequent “the Congress intent that views of a form a inferring hazardous basis for the intent anof earlier Price, one.” 313; United States v 361 US 80 S 304, Ct 326; 4 L 2d 334 (1960).18 disap Ed This Court’s recent proval legislative acquiescence in Donajkowski, supra 258-261, implicitly at recognized that the legislative intent that is to a interpreting relevant stat ute intent is the that enacted it. Consequently, subsequent inaction a Leg different islature, whether it be or rejection silence of an proposal, properly alternative cannot as an serve indi- political institution, people unique. political power As a are “All people.” 1, 1963, people” may § inherent in Const 1. art “Wethe recall subjecting doing judicial elective officers without reasons so to 1963, 2, people” right propose § review. laws, art Const 8. “Wethe have reject proposed laws, approve reject or and enact or to laws Legislature. 1963, 2, people” enacted art Const 9. “Wethe are not subject replaced being being in the election or next recalled. “We the people” quorum requirements, people” face no term limits or and “we the peo do not derive our from the consent those we serve. “Wethe ple” may propose amendments, requires constitutional function accomplish, majority regard two-thirds both houses otherwise proposed, people” less of how such amendments are it is “we the who ultimately decide whether such amendments become effective. Const and 2. §§ also, e.g., States, 227, 236-240; See Jones v United 526 US 119 S Ct 1215; Guaranty (1999); Corp 143 L Ed 2d 311 Pension v LTV Benefit Corp, 650; 2668; 496 US 110 L S Ct Ed 2d 579 Opinion Markman, J. Given, intended. prior Legislature of what a cator institution political are not a however, people that the every transformed which is Legislature, akin to the people, of the the same years, subsequent vote two Constitution, adopted who the 1963 people” “we the intent the into the provide insight does relevant body. enacting appropriate speculate the possible regarding it is Although Propo- voting against of those subjective motivations in inference, my judgment, sal reasonable A, rejection peo- is that the be drawn from this that can proposed provision to become ple did not want sug- of the Constitution. The dissent part Michigan Proposal A is “irrelevant” that the defeat gests reject proposals variety for a of rea- because voters do not become proposals sons and that such defeated only on direct legal law. This focuses argument proposal itself, ramifications of a defeat that can be drawn from legislative insight ignores political the enduring this defeat as to the intent of Constitution.19 body previously adopted that the 1963 rejection Proposal any Construing A in than its manner other implication, i.e., people most obvious that the desired not to add a more provision constitution, far-reaching legislative veto to their would be to noted, constitutionality ignore the historical context of the vote. As inception. See, e.g., in doubt 1977 PA 108 had been considerable from its Request Advisory Opinion Constitutionality 1977 PA on for Supreme supra. Subsequently, its the United States Court issued relatively opinion high which state in Chadha. Given the incidence with adopt reasoning the United States courts tend to the constitutional Court, required so, questiona Supreme highly to do it is a even when not truly proposition anyone Michigan that in 1984 was certain that ble Hence, challenge. PA withstand a it is incon 108 could constitutional reality may suggest there have been a sistent with the historical rejection proposal—namely, people’s reason for the more subtle truly Legislature, though people in their that even they desired already permitted Constitution were confident 462 Mich

Opinion by Markman, strongly disagree Indeed, with the dissent’s asser- popular people, expressly tion that this vote of the provided the constitution, is “irrelevant” to the present analysis. disagree To about the exact mean- ing of such a vote is understandable. But there is no derogating significance basis for of the electo- rate’s exercise of their constitutional as merely rejection” twenty a “ballot-box that came years too late. Indeed, there is no more constitution- ally significant event than when the “[a]ll wielders of political power” under that document, 1963, Const art § extraordinary 1, 1, choose to exercise their author- ity directly approve disapprove to or of an amend- pro- §§ ment thereto. Const 1 and 2. The posed widely by amendment here was debated people representatives, and their as well as within the presumably media. Well over three million voters, reflecting upon after the merits of the amendment, “yes” marked or “no” on that ballots described “a pro- posal TO ALLOW THE LEGISLATURE TO APPROVE OR DIS- approximately with APPROVE administrative rules,” marking three-fifths of those voters “no.”

Apparently, eyes in the of the dissent, these voters laboring misapprehension were under that the exer- cise of this was somehow relevant to the governance they of this state. Little did know, how- only they approved ever, that if had the amendment would their decision have been deemed relevant later justices Apparently some of this Court. because they “wrong” made the choice, their vote is now shedding deemed the dissent to be “irrelevant” in such review of rules and therefore believed that Propo- sal A was redundant. Blank v Opinion by Markman, same electorate upon meaning what light they when ratified it in the constitution accorded to 1963.20 characterization,

Further, contrary to the dissent’s people” directly “we the assert, imply, or do not it PA 108 because the added rejected language Proposal that of the defeated mirrors A. Proposal obviously did not Rather, the vote on A will as electorate, 1977 PA 108. The involve rele- rejection proposal, of the expressed their what provides as it into insight vant inasmuch they 37 to mean when people understood art rejected proposal “trump” legis- it. A does not ratified lation, provision but a constitutional does.21 pro any opinion on “whether the review The dissent disclaims JCAR my prudent,” suggests reasoning that is cess is that it is somehow Proposal rejection with “whether the voters’ 1984 was concerned A ” However, ‘wrong.’ 159-160, ‘right’ n 4. I believe that the dissent Post at deeply misapprehends my point. simply pointed incongru I have out the approach willingness significance attach to the vot ous of the dissent’s proposal wholly discounting rejection approval of a while the voters’ ers’ proposal. Despite disclaimer, approach its it is the dissent’s of the same purports pass making judgment on the substantive decision by finding only approval measure, people, significance in their of a disapproval. ignoring significance in their “Mary” metaphor The dissent a about and her favorite color to uses proposition that, different, if the facts were no relevant infer illustrate expression people.” of will “we the ence could be drawn from the 1984 However, facts, go substituting actual the same illustration would Mary something Monday, gave like this: On some indication that her Thursday, important was blue. On it becomes to know what favorite color Monday, points Mary’s on favorite color was on and someone out that Wednesday, Mary unambiguously that her favorite color was blue. stated Mary preference Wednesday pro constant, expressed Because is a her on likely preference expressed regarding information her vides some relevant days By comparison, metaphor if was a about two earlier. person’s acquiescence, expression favorite color on an of a different Mary’s Wednesday provide insight regarding would no useful favorite Monday. color on

Opinion by Mahkman, “acquiescence” I believe that it is not Therefore, people” political when “we the exercise the ultimate against under our constitution and vote expressly permitting government one branch of the particular exercise control over another. I view the rejection Proposal meaningful expression A as a people, people will of the the same whose intent is necessary understanding to an of the 1963 Con- stitution.

CONCLUSION my I find this to abe far closer case than do col- leagues with whom I concur, but nonetheless would also conclude that 1977 PA 108 is unconstitutional (1) express because: Legislature’s it exceeds the limitations on the agency rulemaking

involvement in under (2) 4, 37, Const it conflicts with the expressed rejected Proposal will of the voters who A in 1984. opinion,

Unlike the lead however, I would not strictly focus on the moment when the or the jcar Legislature attempts to veto rules in order to assess constitutionality of such Rather, conduct. I would constitutionality larger process, focus on the of the recognizes statutory which that the authorization for fully complied such involvement with the enactment presentation requirements. I Further, do not view preserve veto, which serves principal constitutional role of the as the policy enactor of fundamental decisions, to be an “legislating” invalid exercise in without adherence to presentation requirements the enactment and system Constitution. Rather, believe that a essentially legislative in which decisions are made 153 Dissenting Opinion Cavanagh, J. poses government greater the executive branch of a separation powers threat to the mandate of Const specific language 1963,art 2. If not for the of art people’s rejection Proposal § 37, and the I A, upholding would favor 1977PA 108.22 agree analysis parts n(c), I with the n(B), h(d) opinion concerning severability of the lead of the portions offending §§ 45 and 46 of the the con- apa, stitutionality pursuant enabling of the instant act nondelegation validity current doctrine, and the challenged scope rulemaking rules in view of the authority granted to the MDOC MCL 791.206; MSA reasons, 28.2276.23For these I concur in the overall part opinion. conclusion articulated in m of the lead (dissenting). Cavanagh, J.

I. INTRODUCTION join opinion I cannot the lead because it fails to important recognize distinctions between state and distinguish federal law. It further fails to the factual presented situation in INS v Chadha, 919; 462 US 103 (1983), presented 2764; S Ct 77 L Ed 2d 317 from that tripartite republican government, primary In a form of check on the any particular branch is the resistance of the other two branches displaced. being Hence, practical one result of this Court’s decision today may scrupulously be guard will more upon agencies. themselves, Agencies that it bestows which must ultimately rely funding susceptible on the and are to hav ing superseded by statute, may subject their rules also find themselves Recognizing other more subtle means of influence. the fore sight convention, pos of James at Madison the federal constitutional it is “ policy place limiting sible ‘that in doubtful cases the soon take [will] ” [enabling require repeal.’ the duration of as to renewal instead of acts] Chadha, supra 18, quoting Farrand, at n The Records of the Fed 1787, p eral Convention of 587. 23 But see also n 13. Mich Opinion by Dissenting Cavanagh, statutorily with the concurrence that today. agree per authorized veto is not unconstitutional legislative that 1977 PA 108 does not violate se, agree and also of the Michi- the Enactment and Presentment Clauses not, however, I that agree Constitution. do gan §§45 unconstitutional, are and do not that agree and 46 express with will of the vot- and 46 conflict §§45 I ers. would hold that and Administra- §§45 24.245, 24.246; Procedures Act MSA tive MCL (apa), 1977 PA are constitutional 3.560(145), 3.560(146), Department and that of Corrections rules (doc) they are invalid because do not conform with the apa. requirements Therefore, respectfully dis- uphold sent. Because I would I46, would §§45 severability. the issue not reach

H. ISSUE The central issue comes down to this: when an agency proposes pursuant executive rules to a limited authority, may joint delegation com- disapprove part statutorily mittee the rules as of a process? mandated rule-creation The defendants assert that the doc rules are valid because §§45 46 of the are unconstitutional. plaintiffs The constitutional, counter and 46 are if §§45 unconstitutional, chap- found are not severable from apa. ter 3 of the If 45 and 46 are found constitu- §§ plaintiffs tional and severable, contend that fail delegation must as overbroad. The does not on whether argument hinge the exer- power by tion of an is agency unconstitutional even apa. it conforms with though Instead, question is: (1) whether the can still be delegation considered constitutional if invalidated, 45 and 46 are and (2) §§ Blank v Dissenting Opinion by Cavanagh, if the delegation valid, whether an executive agency pass can rules without complying require- with the ments of the APA.

IE. MICHIGAN LAW A. RELEVANT HISTORY questionable put DOC into force without Joint Committee on Administrative Rules (JCAR) steps review came to fall on the courthouse after being tossed between the and executive validity branches. In order to examine the of APA imperative §§45 and 46, it is to understand the his- tory necessarily attaches an rule. The genesis of the DOC rules can be traced to the enact- product apa. ment of the The became law aas APA legislative process: by the normal enactment introduc- passage eventually tion and of a bill that was presented by signed to and the Governor. MCL 24.201 seq.-, 3.560(101) seq. enabling et MSA et The statute rulemaking power upon that conferred the DOC in the place pursuant first was also enacted to constitutional procedures. MCL 791.206; MSA 28.2276. From that point, the ball bounced to the executive and branch, power promulgate the DOC had the to rules within by delegated Legislature. bounds of Lim- placed by enabling itations were on the DOC stat- apa. ute as well as Here, the doc crafted rules required by By and submitted them to JCAR as the APA. determining stepped delegated that the doc outside its power, Legislature volleyed the ball back to the response, executive branch. In the DOC then decided play by comply its own rules. The DOC failed to 462 Mich 103 156 Dissenting Opinion Cavanagh, apa to file rules with when it proceeded proposed in the face of JCAR disapproval. legal perspective, of the APA the enactment

From a providing enabling statute the enactment of the clearly “legislation” for doc rule creation constituted purposes and Presentment for the of the Enactment presented They bill, were introduced Clauses. enabling Governor, were enacted. When the delegated constitutional statute DOC, applicable. delegation governing The rules became comply by submitting with the DOC failed to apa approval. filing A for without a certificate of JCAR question validity then arose. Now the debate rule upheld on whether the rules should be on the turns grounds unconstitutional, or whether that the procedu- of a the rules should be invalidated because §§45 46 ral failure. I believe that are constitu- equivalent “legis- tional because JCAR review is not Further, lation.” the doc rules should be invalidated in conformity pro- recognizing with cases safeguards during must be followed cedural process. rulemaking e.g., Detroit Base Coalition See, Handicapped Dep’t Rights the Human v (1988); Services, 172; Social 428 NW2d 335 Clonlara, Ed, 230; Inc v State Bd Mich (1993);People Turmon, NW2d 638; Mich NW2d620 correctly opinion recognizes lead may only

Court declare statute unconstitutional citing of a 112, the face clear violation. Ante at Campbell, Wyant Foundry Co, Gauthier v & Cannon Similarly, (1960). 510, 515; 360 Mich 104 NW2d 182 presumed constitutional, statutes are to be and the Dissenting Opinion by Cavanagh, challenger invalidity.1 proving bears the burden of Harnischfeger Corp, Johnson v 414 Mich 102, 112; League (1982); 323 NW2d912 General Co Ins v Cata strophic App Ass’n, Claims 165 Mich 278, 293; 418 (1987), grounds NW2d 708 rev’d on other 435 Mich 338; 458 NW2d 632 I would hold that the DOC failed to meet its burden.

B. CONSTITUTIONAL PROVISIONS opinion points following The lead state con- provisions key stitutional as to the determination of present (1) case: the Enactment and Presentment §§ (2) Clauses of Const 1963, 4, 1, art 22, 26, and 33, Separation of Powers Clause found at 1963, Const (3) suspension § provision 3, 2, art the rule agree Const 1963, 7. I that these constitu- provisions tional are relevant to our determination, disagree reading but that a collective of these consti- provisions tutional §§45 leads to the conclusion that and 46 of the are unconstitutional. determining whether the has the particular begin to enact a statute, we with proposition that it has the to do so unless express prohibition place.

an constitutional is in See, e.g., Housing In re Brewster Street Site, 291 Mich (1939); Advisory Opinion 313, 333; 289 NW 493 on Constitutionality 1976 PA 317- (1977); Attorney 318; 254 NW2d 544 General ex rel interesting An agency, twist this case is that the an executive doc, comply refused to with a statute because it felt that the statute was unconstitutional. It is the action of the doc in violation of the statute that gave plaintiffs’ claims, statutory constitutionality rise to the while is raised Thus, defendant, statutory challenger, as a defense. it is the as who car overcoming presumption constitutionality. ries the burden of 462 Mich 103 158 Dissenting Opinion Cavanagh, J. NW Montgomery, 504, 538;

O’Hara v law changed of 1963 The Constitution drafters chose to leave many respects, but the authority Michigan’s Legis- intact. nature of grant legis- to a broad of operates pursuant lature still imposed are authority; specific limitations lative Conversely, the federal constitution the constitution. this Court power Congress. on As confers limited Brewster, supra in In re at 333: stated grant is not a The Constitution of the State upon powers, power legislature, but is a limitation its delegation a of the United States is while the Constitution government. Federal [Citations omitted.] law, which is not words, In other under state that presumed permitted. to be Under federal prohibited is permitted prohibited. law, that which is not posi- principles disagree lead me to with the These indicates an opinion tion of the lead that 37§ authority pass Legislature’s intent restrict power. rulemaking governing delegation laws correctly concludes that art opinion The lead § follow, It does not serves as a measure. “stopgap” however, possibility 37 forecloses the that § apa presumption Rather, Michigan’s is constitutional. constitutionality statutory weighs in favor of statutory construction, plaintiffs. principles Under reconciled, they be must if the and art 37 can be.2 concurrence, Contrary suggest I that the to the assertion of the do not yield Rather, a statute must be deemed constitution must to a statute. clearly my view, if a statute constitutional unless it is unconstitutional. constitution, clearly reconciled with the then it is not unconstitu can be concurrence, great I am aware of a deal of

tional. Unlike the statutory provision requires interpret as constitutional if it can us to Dissenting Cavanagh, disagree

Moreover, with the concurrence that the Proposal any defeat of A in the 1984election has rele present reject proposals vance to the case. Voters variety proposal of reasons. The effect of unchanged. defeat is that the law remains Under the proposal law of state, a defeated does not legislation law; become enacted does. When the APA spite enacted, was it became the law of this in state prior proposal rejected of the fact that a related was by the voters.3 opinion concurring correctly acknowledges

The propo- that the state of the law remains intact when a rejected by sal is the voters. Nonetheless, the concur- proposal rejection making rence raises sword, as a it guise ascertaining insight relevant under the into agree rejec- voter intent. I cannot that the ballot-box proposal twenty years pas- tion aof almost after the sage provides any of our state’s constitution relevant insight enduring political body into the “intent of the previously adopted the 1963 Constitution.” Ante at 149.4 be say construed in a manner consistent with the constitution. To other- destroy presumption wise would validity. See, e.g., of constitutional Kampf Kampf, App 377; v (1999); 237 Mich 603 NW2d 295 Brown v Siang, App 91, 97; 107 (1981), citing Ferguson Mich 309 NW2d 575 v Skrupa, 726; 1028; (1963). 372 US 83 S Ct 10 L Ed 2d 93 See also Seaman, 299; (1976); Natural Resources v 396 Mich 240 NW2d 206 Blue Michigan Governor, 51; Cross & 1, Blue Shield v 422 Mich 1 NW2d (1985); People McQuillan, 511, 536; (1974); 221 NW2d 569 Co, 356; 1001;

Lehnhausen v Lake Shore Auto Parts 410 US 93 S Ct L35 apa 4, easily Ed 2d 351 § Art 37 and the are reconciled because they legislative approval separate types address under two of circum- jcar stances, nothing prohibits and because in § art review process. any event, determining voter distaste is not the standard for statu tory constitutionality. dangerously argument The ques concurrence associates its with the rejection Proposal “right” tion whether the voters’ a in 1984 was 462 Mich 103 Dissenting Opinion Cavanagh, J. opinion following logic: uses the concurring

The political a in the people” represent constant “We the adopted the 1963 Constitu people” “We the process. people” rejected Proposal A in 1984. tion. “We the rejection proposed amendment in Therefore, people” that “we the intended to consti 1984 reveals tutionally reject language proposal. of the 1984 implies implic that the has been The concurrence people” responsible “we the itly rejected by the same language for the 1963 Constitution because Proposal applica A. In parallels language APA tion, the concurrence would lead to the conclusion rejection proposal trumps legislation of a peo by representatives enacted elected “we the ple.” logic. delegates The concurrence defies a consti the 1961 constitutional convention voted on provision pro distinct from the amendment tutional and the concerns that caused “we the posed people” reject proposal 1984 were not necessa rily people” the same concerns that drove “we the adopt part 37 as of the 1963 Constitution .5, jcar “wrong.” express opinion process I no about whether the review jcak my validity prudent. Instead, analysis focuses on the of the review process representatives that was enacted the as the of the rejection people. argue proposal gov- I do not that has no relevance to the rejec- state, proposal of this but rather believe that the effect of ernance proposal language the fails to the law of tion is that become rejected presented by proposal. the state at the time and in the form equation clearly Thinking in more common terms illustrates the of the Monday, Mary was, logical I what her favorite and she error: asked color Tuesday, was, again what favorite and she said blue. On asked her color Mary’s Mary constant, green. her said is a but intentions are not. response Tuesday that, Monday, she on does not lead the conclusion on say green. was intended to her favorite color example, example provided The tries to refute this but the concurrence necessarily imperfect. that the concurrence is It rests on the idea Mary’s Mary’s changes. example, color In the concurrence’s favorite never Monday equivalent people’s dur- decision on would be the of the decision Blank v Dissenting Opinion by Cavanagh,

Although subject the electorate is not to the same political considerations as Legislature, neither does the in electorate exist a vacuum. law gives little weight comments made after the a passage of statute or provision constitutional when those represent comments an intent different than expressed by those adopted who the statute or provision. constitutional See, e.g., Durant v State Bd Ed, 364, Mich n 382, 12; 381 NW2d 662 (1985); Schmidt v Dep’t Ed, 441 Mich 236, 282; 490 NW2d 584 (1992) (Cavanagh, C.J., dissenting). To the extent rejection that the proposal of a can even be consid- ered indicative of legislative intent, rejection Proposal A in 1984 carries weight little because con- struing rejection of Proposal A as a constitutional ing By analogy, then, the 1961 constitutional convention. the concurrence that, 1963, people” gave asserts “we the “some indication” that it jcar reject process. disagree intended to review for the reasons throughout opinion. stated explained body opinion, rejec- As in the of this I do not believe that the Proposal any However, tion of a creates useful inference. if we are to rejection Proposal refer to the I would note that a different construc- a, possible. say that, tion is people” One could “we the intended to impose rulemaking power. a restriction on executive apa In was passed by people.” on behalf of “we the “we the people” change Thereafter, peo- chose not to the state of the law. “we the ple” expressed change peo- never though a desire to the law even “we the ple” implications became aware of the of the in 1984.The concurrence suggests any interpretation other than its own is at odds with “histori- reality.” support proposition. cal I see no for such a I see no reason to Legislature may reject proposed legislation conclude that the choose to variety reasons, for a they but that the voters are so one-dimensional that against proposal only single could vote if reason. Even one only permissible rejec- concedes that the inference to be made from ballot people proposal part tion is that the did not want the to become a of the constitution, necessarily people it does not follow that the also did not proposal part statutory Despite want the to be law of this state. otherwise, meaningful concurrence’s efforts to demonstrate I see no dis- legislative acquiescence my (of tinction between which brother Markman disapproves) “popular acquiescence” and the doctrine created the con- today. logic support currence Neither nor the concurrence. 462 Mich

Dissenting Opinion Cavanagh, J. clearly contrary rejection lan- to the be of JCAR would contrary language guage of the to the of the APA prefer that to refer to laws Constitution. I passed that have not. rather than those have been developed judiciary has established Moreover, the discerning of this the intent behind the laws rules for approach novel fits nowhere state. The concurrence’s interpret are bound to consti- within those rules. We presumption provisions with a of constitu- tutional way supra, tionality, Johnson, and in such a “ interpreted are ‘in the sense most obvious words ” understanding City . . . .’ Traverse the common Attorney General, 390, 405; School Dist v “plain” reading §4, A of art NW2d 9 opin- support position not of either the lead does plain reading of art Instead, or the concurrence. ion provides § 4, 37 may by empower legislature concurrent resolution [t]he

joint sessions, legislature, acting committee of the between suspend any promulgated regulation an admin- rule or adjournment agency subsequent of the last istrative suspension preceding regular legislative shall session. Such longer regular legisla- no than the end of the next continue tive session. language not mention of art 37 does even during regular legislative

review of essentially injects words session. The concurrence § 37. into intent, I would turn to the

If we are to consider convention rather than records constitutional rejec- making negative abstract, an inference from the proposal. disagree with the concur- tion of a ballot representation record, the constitutional rence’s assessment of the fram- and with concurrence’s Blank v Dissenting Opinion Cavanagh, reveals that a The record and actions. ers’ intentions ensuring majority delegates with were concerned limiting power, legislative it. The conven- rather than provision § 4, to art 37 states that tion comment “provide[] designed check on the to a was agencies rule-making administrative regular legislature session.” The is not when the pur- reveals that the record also official constitutional perceived pose § defect 4, art 37 was to cure meaningful agencies to evade law that allowed agency 1, Record, 2 Official review of rules. pp 759, 2419-2425, 1961, Convention Constitutional taken between The focus was on actions 2968-2971. Only minority delegates of convention sessions. expressed wisdom and constitu- concern about the validity prevailing §4, of art 37. Id. The view tional loophole § needed to close a 4, was that art 37 was exploited by agencies. previously executive Id. at reveals that art The constitutional record 2970-2971. Legisla- designed guarantee § that the 4, 37 was have the to review ture would promulgated between sessions. The record does not analysis. grant” support the concurrence’s “limited framers the record reveals that the intended Rather, legislative oversight. guarantee The concurrence’s assumption allow the intended to that the framers circumstances, com- act under limited ports nor with record with the constitutional neither premise Michi- the framers of the that the established gan would intended that Constitution expressly prohibited from so unless able to act be supra e.g., doing. 333; at Advi- Brewster, In re See, Constitutionality sory Opinion PA on Attorney supra ex rel O’Hara 317-318; General at Dissenting Cavanagh, J. supra Montgomery, provisions at 538. The at issue involve circumstances different than those §4, 37, in art and I see described no basis for con- cluding accomplish any- framers intended to thing clearly §4, than other what is stated in art 37.

C. LEGISLATION DEFINED requires Michigan, legis the constitution all §4, lation be bill, must art and that all bills presented must be to the Governor in order to Logically, law, become Legislature 33. if an action of the something “legislation,” other than then the action need not be bill and need not be .6 presented disposition Thus, to the Governor the of hinge “legislation” this case must on the definition of Michigan under law.7

1. WESTERVELT v NATURAL RESOURCES COMMISSION supports finding law constitution ality. in Court, This Westervelt v Natural Resources (1978), Comm, 440; 402 Mich 263 NW2d 564 following legislation: offered the definition of “the concept ‘legislation,’ sense, in its essential is the power speak any specified subject any on without limitations.” Under this definition, would conclude process “leg- that the JCAR review does not constitute 6 Legislators many undertake that actions do not rise to the level of “legislation.” examples. work Resolutions committee are common Attorney recognized courts and General have both a distinction between by introducing acting See, e.g., Boyer-Campbell bills resolution. Co v 282; Fry, OAG, 1976, (February (1935); 260 NW 165 No. 4936 1976). concurrence, by unpersuaded opinion’s Like the I am the lead refer ence to of our the law sister states. Dissenting Cavanagh, clearly power is limited jcar’s because

islation” apa. terms noticeably legislation is definition Westervelt’s Although opinion. Westervelt the lead from absent reasoning opinion, plurality useful, I find its was a guidance wisdom of our from the would take opinion’s agree predecessors. lead with the I cannot that nor its conclusion Westervelt casual dismissal empowered limitation. without to act jcar sprang “legislation” discussion Rather, Westervelt’s support long a conclusion cases that line of from a opinion. contrary lead reached to that opinion references to makes various The lead “legislative” but fails to dis- nature, are actions that “legislation.” “legislative tinguish from action” citing opinion concludes, without lead Instead, the engages any authority, “[w]hen that by enacting legisla- ‘legislative do so action’ it must contrary, Michigan law rec- 119. To the Ante at tion.” “legislative” ognizes in nature do actions that are necessarily “legislation.” Westervelt, constitute not supra at 440-441. provides Michigan, delegation doctrine may delegate that is ability may delegate to create not

in nature but example “legislation.” an was thus Id. Westervelt delegation There, this Court in action. doctrine usurp not branch did the executive determined separation of in violation of compli- promulgated powers when it doctrine apa precisely is a distinc- there because with the ance “legislation.” “legislative Id. If act” between a tion not could distinction, no there were authority. e.g., validly delegate Osius v St See, its 166 462 Mich

Dissenting Opinion by Cavanagh, (1956). Shores, Clair 344 Mich NW2d 693; Moreover, cases have commented on “legislative support procedural acts” as a valid serving delegations mechanism to ensure that authority to the executive branch are not unconstitu- tionally supra; supra; broad. Clonlara, Turmon, Michigan Farm Bureau v Bureau Workmen’s Compensation, 141; 408 Mich NW2d

2. LEGISLATIVE AND THE ACTION DELEGATION DOCTRINE pressed example This Court is not hard to find an separation powers challenge of a case in which a response promulgated was launched in to a rule question today the executive branch. The on focuses sepa- whether JCAR review of rules violates the powers ration of doctrine because “legislating.” past, generally In the the debate rulemaking examined whether the exercise of author- ity by usurpation the executive branch constituted the supra of a function. Osius, at 698. The focus was on whether the executive branch violated separation powers by “legislating.” doctrine yesterday’s question Cases that addressed are useful today. good starting

This Court’s decision in Osius is a place examining state modem law. Although Osius was decided before the ratification of Michigan’s principles of Constitution enunci- consistently ated in Osius have been to in referred post-1963 jurisprudence. e.g., constitutional See, Natural Resources v Seaman, 309; (1976); supra. 240 NW2d 206 Turmon, Osius ex- Dissenting Cavanagh, J. validity legislative delegation in a zon- the amined upon subsequently ing been relied as has context. It establishing as the “standards test” landmark case the supra Michigan. delegation Westervelt, the law provides test that The Osius standards at 434. may delegate functions certain prescribes body long guidance as as it another to reasonably precise as the sub- “are as that standards permits.” supra ject requires Osius, at 698. matter continuing Westervelt, this Court examined validity Court adhered to of Osius. Westervelt explained delegation how and standard, Osius separation powers to related both doctrine process. supra Westervelt, at 437- due doctrine and to day, that, held while At end of the Westervelt 438. Legisla- power delegated, lawmaking cannot be agency delegate an administrative can ture long guidelines at 441. as are observed. Id. as certain concluding starting point, as used Osius Westervelt met, when standards were Osius had occurred. Id. Accord- authorization limitation provided delegation ing Court, the act to the required operate delegate was within which the scope delegate’s power. Id. and confined the “legislation” rulemaking Further, did not constitute required delegate was because the executive within limits. Id. to act strengthened Michi- rule was

Westervelt’s then supra. probed gan There, Court Bureau, Farm rule the APA and concluded definition of a under if it be valid an rule could administrative scope granted power, (2) (1) issued within the was pursuant procedures, proper (3) rea- was By supra 149. Bureau, Farm at sonable. 462 Mich Dissenting Opinion by Cavanagh, implication, satisfy failing require- a rule these ments be invalid. would supra,

In Twrmon, examined Court the defini- guidelines” tion of “sufficient in the context con- directing straining delegation. Turmon held that, agency appropriately legislatively when an exerts del- egated power, delegation Michigan’s the fits within constitutional framework because the policymaking retains control. at Id. 647. The Court specifically provision noted that “inclusion apa mandatory procedure as to be followed in the board’s rulemaking possible against further insures abuse of delegated power . . . .” Id. at 648.

Finally, Clonlara, discussed the effect apa the of directly. specifically more There, the Court stated that attempts agency adopt if an to a rule without follow- ing procedure outlined then the rule apa, will not have the force and effect of law. Id. at 239. Legislatively power delegated validly can be pursuant proper procedure. exercised to Id. rulemaking From cases, these it becomes clear that pursuant appropriate statutory procedure, though to “legislation.” in character, is Yet, not execu- agencies rulemaking power only tive have to the they power extent that within act the bounds of con- upon Legislature. ferred them Thus, the follow- ing apply. (1) delegation authority three rules if sufficiently specific, delegation is then the agency will valid, be but the executive must nonethe- prescribed (2) less act within boundaries; if the dele- gation sufficiently specific subject is not for the mat- delegation constitutionally ter, then the will be inva- delegation (3) lid; if valid, is but the executive Corrections Dissenting Opinion by Cavanagh, steps then executive bounds, its outside branch power will be invalid. use authority promulgate Clearly, to the DOC director’s enabling partially from the was at least derived rules MSA That 791.206; at MCL 28.2276. statute, found may pro- expressly provides, director “[t]he statute proce- pursuant mulgate the administrative to 28.2276(1). 791.206(1); MSA act .” MCL . . . dures delegation the ena- Therefore, under necessarily delegation bling act linked is authority under the apa.8

Michigan repeatedly recognized have cases process. delegation See, review is relevant JCAR e.g., Bureau, Farm Turmon, and Clonlara, By swpra. declaring §§45 46 unconstitutional severing from the the lead those sections then apa, fully relationship recognize opinion fails simply enabling is and the statute. It between the “legislat- logical conclude that an not not proce- “legislative” ing” rules when creates outside it beyond scope authority, its dural boundaries by reviewing “legislating” that the is but procedural rules within boundaries. those same though that an Even this Court has concluded separation powers agency doc- does not violate the compliance promulgates with when it rules trine 8 clearly by Recently, expressed Legislature. In link was more part enabling as statute was amended in follows: supreme that sections 45 and 46 of If the court rules unconstitutional, procedures stat- are and a the administrative act requiring legislative is not review administrative rules ute ruling, days Michigan supreme after the court enacted within 90 promulgate department under this section. [MCL shall not rules omitted).] 28.2276(5) (citations 791.206(5); MSA Mich Dissenting Opinion by Cavanagh, also Court’s decisions state that rule apa, apa procedures will if be invalid are not followed. Today, steps blindly the Court forward when it upholds §§ the DOC rules and declares and 46 key considering unconstitutional without even Michi- gan cases.

I would hold that the exertion veto jcar’s power “legislation.”Michigan does not constitute case provides agency meeting law that an the Osius stan- comply present- dard need not with enactment procedures during rulemaking process ment “legislating.” e.g., because the not See, is Sea- supra process magically man, at 309. The not does “legislation”simply pass evolve into because legislator.9 from an the desk of executive officer to performs some functions that do not “legislation,” constitute and I believe that JCAR review is one such function. The JCAR does not have the power speak Instead, without limitation. JCAR merely part procedural review is one of an intricate system. Further, above, as stated JCAR review does not “legislation.” fall within Westervelt’sdefinition of IV. THE LEAD OPINION though today’s naturally Even case fits within the opinion law, framework state case the lead relies primarily concluding on Chadha when JCAR “legislative review constitutes a Also, act.” in the 9 Although, disagree Michigan-specific I with the concurrence that cir unconstitutional, agree §§ cumstances render and 46 that the balance endangered by between the executive branches concluding may regulate pursuant delega that the executive branch to a satisfying Clauses, tion without the Enactment and Presentment but that Legislature may power legislative not check the executive’s use of through legislative use veto. at Ante 136-137. Blank v Opinion by Dissenting Cavanagh, that Chadha, opinion the lead would hold

spirit jcar authority in viola- usurps gubernatorial review Enactment, Separation Presentment, tion of the adopting of our constitution. Powers Clauses opinion lead concludes that “the Chadha, logic case are similar of the APAat issue provisions in Chadha." Ante veto struck down legislative to the the four factors opinion summarizes at 115. The lead congres- for whether determining utilized in Chadha type legislative constitutes the sional action Article I of the United States Constitu- by governed However, if we are to take guid- at 113-114. tion. Ante factors in a Chadha, I would categorize ance from whether the status of different fashion: slightly (1) branch have been persons legislative outside question “legisla- the action in is altered, whether (2) effect,” whether the stat- (3) tive in its character and may only be policy ute involves determinations presentment, (4) enactment made prescribes constitution governing whether Chadha, supra one house. at action legislative jcar below, As will be discussed review 952-955. in charac- quo, maintains the status not require policy not determinations effect, ter and does presentment, and does not enactment requiring Additionally, involve action one house. Chadha bears some resemblance although with the conclusion of the present case, disagree process car- opinion lead JCARreview Michigan’s as legis- constitutional significance ries the same at in Chadha.10 lative veto issue 10Further, although we are faced Chadha addressed some of the issues today, acknowledged discussion looked be that Chadha’s with it should 462 Mich 103 Dissenting Opinion by Cavanagh, J. A. AND OF JCAR REVIEW “LEGISLATIVECHARACTER EFFECT” QUO AND OF THE MAINTENANCE STATUS Nationality In Chadha, Immigration Act, the provided USC was at issue. act 1254(c)(2), The either house of could Congress pass resolution Attorney the United States General’s deci- invalidating deportable to sion allow a alien to remain in the Chadha, United at 923. supra States. Section upon Attorney 244(a)(1) conferred the General the discretion suspend deportation. to Section 244(c)(2) allowed a house of to single Congress override the suspension deported. and order the alien be

Thus, Chadha, in upon Congress conferred the Attorney authority General the make to a decision regarding deportation the particular By alien. exercising its “legislative veto,” it nullified the Attor- ney General’s decision. The result was that the “dele- gation authority” authority conferred at no all because one house of Congress unilaterally could away take Attorney the effect of the General’s deci- beyond validity “legislative Rather, majority the of the veto.” the Chadha great pains principles underlying took the to discuss federalist the United Constitution, emphasis States with on the intent.” Id. “Framers’ at 944-959. very analysis first sentence of Chadha’s Clause Presentment makes analysis reference to the Constitutional Convention. Id. at 946. The then carefully powers notes that the federal constitution circumscribes the Congress. regard bicameralism, opined, Id. at 946-949. With to Chadha requirement I, scarcely bicameral of Art. “[t]he §§ 7 ofwas less concern the Framers than the was Presidential veto and indeed the two con- cepts interdependent.” Chadha, I, According are Id. at 948. “Art. §§ represents power the Framers’ decision that the of the Federal government finely single, wrought be in accord exercised with a exhaustively procedure.” considered, Thereafter, opinion Id. at 951. the explained process analyzing be considered when a federal statute procedu- within the constitutional framework art I. Id. at 951-959.The applied applicable Instead, Michigan ral standards are not Chadha here. apa. guided by procedures outlined Dissenting Opinion Cavanagh, Attorney pow- Thereafter, sion. General remained respond. Importantly, “legislative veto” erless to Attorney play General came into after exercised authority. delegated the case That is not here. part rule-approval pro- review is case, jcar Rulemaking cess. is not conferred then away; rulemaking rather, taken establishes a process. agencies The executive have been dele- process. gated Also, to act within that opportu- Chadha, unlike the executive has the nity proposed plain language to revise rules. The provide procedures §§45 and 46 for the executive disapproval. agency to follow the face of JCAR provisions agency When the follows the of the it apa, opportunity has an to overcome the decision. jcar’s simply plain ignore Here, the DOC decided to the lan- guage of the because it felt that it was not bound apa by the statute. Immigration

Further, Chadha held that the Nationality constitutionally Act was flawed because ability Congress’ deportation “legislative to order was purpose in its character and effect” and “had the altering legal rights, effect of the duties and relations” persons Id. at outside branch. 952. Today’s opinion similarly opines allowing lead rules would JCAR review of administrative affect rights of individuals outside the branch. Specifically, opinion argues the lead that the jcar process interferes with doc director’s abil- review ity department. Yet, to administer his the director power “pursuant has to enact rules to the admin- procedures 791.206(1); . . . .” istrative act MCL MSA 28.2276(1). Jcar review does not limit the director’s Mich

Dissenting Cavanagh, power or alter his rights duties, rather, the direc- jcar subject tor’s is review. quite

Michigan’s Immigra- apa different than the Nationality Michigan tion and Act. Under law, rules they undergo do not become effective until jcar 3.560(145), review. 24.245, 24.246; MCL MSA 3.560(146). “puipose The and effect” of jcar review is “legislate.” disapproval Rather, jcar not to maintains quo the status ante. Persons who would otherwise be affected the rules retain the same status because the rules have never been in effect at the time when jcar disapproves. rights of the executive similarly unchanged branch remain because the exec- agency promulgate utive never had the scope rules outside the jcar review. Instead, jcar part required process. agency review is If the ignores procedural requirements imposed delegation, terms of then the executive has exceeded power delegated analysis to it. As such, the sim- ply returns to whether the DOC rules must be invali- clearly provides dated. law procedural rules must be invalidated if standards are satisfy not Here, satisfied. the doc failed to the consti- tutionally procedural valid standards of when proceeded approval. it jcar without Therefore, rules cannot stand.

B. PRESENTMENT ENACTMENT AND examining presentment, When enactment it is important recognize the reasons that the Enact- ment and Presentment Clauses of the United States key depended Constitution were to Chadha. Chadha separation powers doctrine—by using on the legislative rights by veto to alter individual other than Blank v Dissenting Cavanagh, stepping

legislation, branch was prescribed powers. Id. at 957-958. How- its outside our state consti- constitution, unlike ever, the federal express Separation no of Powers tution, contains powers separation argument was Clause. The precedent, making reference to federal reached by noting fed- the “checks and balances” explicitly impose. Id. Presuma- eral does constitution expressly bly, Michigan’s Constitution does because provide separation powers branches, for a between in could be reached without refer- the result Chadha presentment though even ence to bicameralism or explains presentment, enactment, how Chadha directly separation bicameralism are powers linked to the analogize If doctrine. Id. at 946. we are to carefully present Chadha, then we must con- case to presentment argu- sider Chadha’s and enactment ments. opinion

The lead concludes that review jcar policy involves determinations akin to those at issue in Chadha. Ante at 116-117. I find that the Yet, lead opinion question simply mark. misses the The is not policy Legislature engaged making whether the is determinations, but whether is type policy engaged making determinations legislation. that need to be made in the form of analysis opinion misconcep- of the lead is tied to its any “legislative” tion that action taken a subset of “legislation.” disagree for the rea- opinion.11 my part view, sons stated in m of this jcar process opinion be invali The lead asserts that the review must Instead, go dated because it allows action to unchecked. opinion concludes, Legislature’s ‘policy-making lead “the action exerts a ” equivalent Ante at amending repealing existing legislation.’ effect 462 Mich Dissenting Opinion by Cavanagh, J. by action taken the doc was more akin to legislation process. jcar than is the review this Court Because already has agency decided that does not rulemaking impermissible “legislation” constitute as as nec- long essary guidelines followed, are would further con- clude part pro- that review of rules as process mulgation similarly not “legislation.” There- fore, jcar review does not violate the Enactment and Presentment Clauses of our constitution.

C. BICAMERALISM12 clearly Chadha is also distinguishable because it repeatedly made reference to “the one-house veto,” placed importance on the require- bicameralism ment of the United States Constitution. review is Jcar clearly not the same as a thing one-house veto.13 117, 8, quoting Jersey Assembly Byrne, n 388; New General 90 NJ (1982) (emphasis omitted). 448 A2d 438 jcar agree process I do not that amending review is akin to the jcar repealing legislation. Rather, quo review holds the status ante in jcar place. analogy made, If an is to be review would be more akin to proposal introduced into committee than to an amendment to legislation. proposal subject A will later become to the Enactment passes appropriate procedu- Presentment Clauses if it and follows the Surely, opinion every ral propo- rules. the lead would not hold that failed fact, sal states, must be submitted to the Governor. In the constitution opinion acknowledges, the lead the Enactment and Presentment require passed by Legislature presented Clauses that all bills be provides examples Governor. Article 4 of actions taken the 4, perfect example need not be A done bill. is art which jcar Similarly, allows the to act concurrent resolution. review “legislation.” is a action that does not constitute important terminology, As a recognize matter of it is that Michi gan’s “Legislature” legislative branch, consisting is the entire bicameral Representatives the House of and the Senate. opinion misapprehends presentment The lead the enactment and arguments put by petitioner argu forth and amici curiae. I understand the being presumed ment as that the should be constitutional because nothing Michigan’s Legislature’s ability constitution limits the to enact Blank v Dissenting Opinion by Cavanagh, jcar joint

Instead, committee, composed is a representatives. 24.235; both senators and MCL MSA jcar disapproves rule, When the of a both 3.560(135). houses are notice and an a given opportunity pass joint 24.245; resolution. MCL MSA 3.560(145).14

V. CONCLUSION the view Regardless of Chadha to which one sub- scribes, analysis it clear that the constitutional directly Chadha was tied to the text of the United States Constitution and the Immigration federal legislation by joint part requiring rule review a committee as of the rule process. promulgation provides The statute as follows: If, period provided by (9) (6), within the time subsection the disapproves proposed committee chairperson the or the rule committee impasse approval disap- certifies an after votes for

proval majorities, have failed to receive concurrent the committee immediately report legislature shall that fact to the and return the agency adopt agency. promulgate rule to the The shall not or following rule unless 1 occurs: adopts (a) legislature approving The concurrent resolution days report rule within 60 after the committee has been received respective journal by, of, and read into the each house. subsequently approves (b) The committee rule. permitted by expires (10) If the time this section and the com- (8) (9), mittee has not taken action under either subsection or then proposed agency. the committee shall return the The chairperson chairperson and alternate shall cause concurrent reso- approving lutions the rule to be introduced both houses of the simultaneously legislature legislature place Each house of the shall directly agency the concurrent resolution on The its calendar. shall adopt promulgate following not the rule unless 1 of the occurs: (a) legislature adopts approving The a concurrent resolution days rule within 60 after introduction record call vote. roll adoption requires majority the concurrent resolution serving legislature. members elected to and in each house proposed (b) The resubmits the rule to the committee approves permitted by and the committee the rule within the time [Emphasis this section. added.] Mich

Dissenting Opinion by Cavanagh, Nationality Similarly, analysis begin Act. our should previously, Michigan Michigan’s with law. As stated requires law a different outcome than occurred in jcar process Furthermore, Chadha. review is dis- tinguishable “legislative from the veto” at issue in law, Pursuant to state I would hold that Chadha.. §§45 and 46 are constitutional. When the doc failed procedural requirements §§ to follow the 45 and authority. scope rulemaking 46, it exceeded the of its promulgated I would hold that the rules the doc invalid, are and would reverse the decision of the Appeals. Court of

Case Details

Case Name: Blank v. Department of Corrections

Court Name: Michigan Supreme Court

Date Published: Jun 20, 2000

Citation: 611 N.W.2d 530

Docket Number: 109477, Calendar No. 8

Court Abbreviation: Mich.