LEROUX V SECRETARY OF STATE
Docket No. 120338
Supreme Court of Michigan
March 25, 2002
465 MICH 594
Argued January 23, 2002 (Calendar No. 7).
In an opinion per curiam, signed by Chief Justice CORRIGAN, and Justices WEAVER, TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The application for review of the congressional redistricting plan is denied.
1. 2001 PA 115 was validly enacted because the changes made before submission to the Governor were technical corrections that do not violate the provisions of the Michigan Constitution regarding the enactment of legislation. The correction of the bill by the Secretary of the Senate to include two omitted census tracts implemented the clear intent of the Legislature that the tracts be included and does not invalidate the statute.
2. The redistricting guidelines of
3. The reference to the 1999 guidelines in the 2001 redistricting act does not indicate an intention by the Legislature to make the redistricting plan reviewable using those guidelines. In context, § 4(a) of 2001 PA 115 constitutes the Legislature‘s announcement of its conclusion that the redistricting plan it was adopting is in compliance with all applicable guidelines for redistricting.
Review denied.
Justice KELLY, dissenting, stated that the bill presented to and signed by the Governor was never voted on by the Legislature. Thus, it violated the Michigan Constitution and cannot become law. In addition, the bill that the Legislature passed was never submitted to the Governor. Hence, it too violated the constitution and never became law. The additions rendered the act invalid. The Legislature should be instructed to pass a new act, following the precepts laid down in the Michigan Constitution.
Bodman, Longley & Dahling L.L.P. (by R. Craig Hupp, F. Thomas Lewand, and William B. Forrest, III), and Jenner & Block, L.L.C. (by Paul M. Smith, Sam Hirsch, Marc A. Goldman, and James A. Trilling), for the plaintiffs.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Gary P. Gordon and Katherine C. Galvin, Assistant Attorneys General, and R. Lance Boldrey, Special Assistant Attorney General, for the defendants.
Dickinson Wright P.L.L.C. (by Peter H. Ellsworth, Jeffery V. Stuckey, Phillip J. DeRosier, and Susan G. Schwochau), and Jones, Day, Reavis & Pogue (by Michael A. Carvin and Louis K. Fisher) for the intervening defendants.
PER CURIAM. In this original action, plaintiffs challenge the plan for redistricting Michigan‘s fifteen seats in the United States House of Representatives adopted by 2001 PA 115. Plaintiffs claim that the statute was not validly enacted because the bill passed by
I. FEDERAL FRAMEWORK FOR CONGRESSIONAL DISTRICTING
The Constitution provides that representatives in Congress are to be apportioned among the states according to their populations,1 with the allocation to be made according to the decennial census.2 In general, the United States Constitution leaves to the states the manner of electing representatives.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
However, the Congress and the federal courts have imposed several limitations on the states’ authority in the area of congressional districting. In a series of decisions, the United States Supreme Court has established the primacy of the principle of “one person, one vote.” Wesberry v Sanders, 376 US 1, 7-8; 84 S Ct 526; 11 L Ed 2d 481 (1964); Reynolds v Sims, 377 US 533, 562-564; 84 S Ct 1362; 12 L Ed 2d 506 (1964). That principle requires that congressional districts must be constructed so that “as nearly as practicable one man‘s vote in a congressional election is . . . worth as much as another‘s.” Wesberry, 376 US 7-8. That standard has been refined to require that good-faith efforts be made to achieve precise mathematical equality. Kirkpatrick v Preisler, 394 US 526, 530-531; 89 S Ct 1225; 22 L Ed 2d 519 (1969). Thus, to justify any deviation from mathematical equality, it must be demonstrated that the deviation was either unavoidable despite good-faith efforts or was necessary to achieve some legitimate state goal. Karcher v Daggett, 462 US 725, 731; 103 S Ct 2653; 77 L Ed 2d 133 (1983).
Second, Congress enacted the voting rights act of 1965,3 which, among other things, prohibits state election practices or procedures that result in “a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .”
Third, Congress has imposed a requirement for use of single-member districts for the election of representatives.
II. RECENT HISTORY OF CONGRESSIONAL REDISTRICTING IN MICHIGAN
Unlike the constitutions of a number of states,4 Michigan‘s Constitution does not include any provisions regarding the procedure or standards for congressional redistricting.5 Thus, the Legislature has been free to adopt redistricting plans in any manner it chose, consistent with federal requirements. However, before 2001 PA 115, the Michigan Legislature last enacted a congressional districting plan in 1964. 1964 PA 282. The Legislature failed to redistrict the state following the next three censuses, and the federal courts ultimately adopted plans that have been used since 1972. See Dunnell v Austin, 344 F Supp 210 (ED Mich, 1972); Agerstrand v Austin, No. 81-50256 (ED Mich, unpublished opinion issued May 20, 1982); Good v Austin, 800 F Supp 557 (ED & WD Mich, 1992).
Three Michigan statutes are relevant to the issues raised in this case—1999 PA 221 and 222, passed in anticipation of the redistricting process following the 2000 census, and 2001 PA 115, the redistricting plan at issue in this case.
A. 1999 PA 221—THE SUBSTANTIVE STATUTE
1999 PA 221 provided a legislative process for redistricting congressional seats. It set November 1, 2001,6 as the deadline for legislative action,
guidelines. The first priority was contiguity of districts, followed by provisions involving breaking county and municipal lines.
The secondary guidelines in order of priority are as follows:
(i) Each congressional district shall consist of areas of convenient territory contiguous by land. Areas that meet only at points of adjoining corners are not contiguous.
(ii) Congressional district lines shall break as few county boundaries as is reasonably possible.
(iii) If it is necessary to break county lines to achieve equality of population between congressional districts as provided in subdivision (a), the number of people necessary to achieve population equality shall be shifted between the 2 districts affected by the shift.
(iv) Congressional district lines shall break as few city and township boundaries as is reasonably possible.
(v) If it is necessary to break city or township lines to achieve equality of population between congressional districts as provided in subdivision (a), the number of people necessary to achieve population equality shall be shifted between the 2 districts affected by the shift.
(vi) Within a city or township to which there is apportioned more than 1 congressional district, district lines shall be drawn to achieve the maximum compactness possible.
(vii) Compactness shall be determined by circumscribing each district within a circle of minimum radius and measuring the area, not part of the Great Lakes and not part of another state, inside the circle but not inside the district.
(viii) If a discontiguous township island exists within an incorporated city or discontiguous portions of townships are split by an incorporated city, the splitting of the town-
ship shall not be considered a split if any of the following circumstances exist: (A) The city must be split to achieve equality of population between congressional districts as provided in subdivision (a) and it is practicable to keep the township together within 1 district.
(B) A township island is contained within a whole city and a split of the city would be required to keep the township intact.
(C) The discontiguous portion of a township cannot be included in the same district with another portion of the same township without creating a noncontiguous district.
(ix) Each congressional district shall be numbered in a regular series, beginning with congressional district 1 in the northwest corner of the state and ending with the highest numbered district in the southeast corner of the state.
B. 1999 PA 222—THE PROCEDURAL STATUTE
1999 PA 222 created a mechanism for involving this Court in the redistricting process.
The supreme court has original and exclusive state jurisdiction to hear and decide all cases and controversies in Michigan‘s 1 court of justice involving a congressional redistricting plan. A case or controversy in Michigan‘s 1 court of justice involving a congressional redistricting plan shall not be commenced in or heard by the state court of appeals or any state trial court. If a case or controversy involves a congressional redistricting plan but an application or petition for review was not filed under section 2 or 3, the supreme court may, but is not obligated to, undertake all or a portion of the procedures described in section 4.
The statute then provided two ways for actions to be brought. First,
Upon the application of an elector filed not later than 60 days after the adoption of the enactment of a congressional redistricting plan, the supreme court, exercising original state jurisdiction may review any congressional redistricting plan enacted by the legislature, and may modify that plan or remand that plan to a special master for further action if the plan fails to comply with the congressional redistricting act.
On the other hand, if the Legislature fails to act by the deadline, under
Unless legislation enacting a redistricting plan for congressional districts is approved on or before the deadline established in the congressional redistricting act, a political party, or a member of the United States house of representatives on or after November 2 immediately following the deadline established in the congressional redistricting act, may petition or otherwise file pleadings or papers with the supreme court requesting that the supreme court prepare a redistricting plan for congressional districts in compliance with the redistricting guidelines provided in the congressional redistricting act.
If an action is filed under either of those provisions,
If an application or petition for review is filed in the supreme court under section 2 or 3, the supreme court shall do all of the following:
(a) Exercising original state jurisdiction or other state jurisdiction pursuant to Michigan court rule 7.301(A)(7) or any successor court rule, undertake the preparation of a redistricting plan for congressional districts.
(b) Appoint and utilize a special master or masters as the court considers necessary.
(c) Provide, by order, for the submission of proposed redistricting plans by political parties and other interested persons who have been allowed to intervene. Political parties shall be granted intervention as of right.
(d) After hearing oral argument or appointing special masters, propose 1 plan for consideration of the parties and the public, and make that plan available for public inspection at least 30 days before the time set for hearing in subdivision (f).
(e) Prescribe, by order or otherwise, the procedure for and the deadlines pertaining to filing objections and rebuttal to the proposed plan in advance of the hearing scheduled in subdivision (f).
(f) Hold a hearing on the proposed plan at a time determined by the court but not later than March 1 immediately following the deadline established in the congressional redistricting act.
(g) In order to provide for the orderly election process and for candidates to meet statutory deadlines for filing and residency, and after making any revisions to the proposed plan that the supreme court considers necessary, order a redistricting plan for congressional districts not later than April 1 immediately following the deadline established in the congressional redistricting act.
C. 2001 PA 115—THE REDISTRICTING ACT
Following the release of the 2000 census data and the federal reapportionment of representatives to the states, in June 2001, the Legislature took up the question of districting the fifteen seats allocated to Michigan. The Senate passed a redistricting plan (SB 546) on June 26, 2001. During House consideration of
After final action by the Legislature,10 it adjourned for the summer recess. As the bill was being prepared for submission to the Governor, it was discovered that two census tracts, including 4,578 people, had been omitted from the bill‘s description of the districts. The Secretary of the Senate (the originating house) corrected the language by inserting the two tracts in the description of District 15 in the enrolled version of the bill that was presented to the Governor. He approved it on September 11, 2001, and it was filed with the Secretary of State on that date.11
After the Legislature returned from its recess, on October 17, 2001, another proposed plan, which plaintiffs claim is superior to the 2001 PA 115 plan, was introduced. However, it was never reported out of committee.
IV. PROCEEDINGS IN THIS CASE
Plaintiffs filed this action on November 6, 2001, seeking to invoke the procedures set forth in 1999 PA 222. They alleged that 2001 PA 115 was void because the bill signed by the Governor was not the same one
Plaintiffs premise the jurisdiction of this Court on
The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.
The intervenors cite cases decided under the corresponding language of the previous Constitution14 holding that the Legislature lacks the authority to expand Supreme Court jurisdiction. E.g., In re Manufacturer‘s Freight Forwarding Co, 294 Mich 57, 69; 292 NW 678 (1940).
However, it is unnecessary for us to decide this issue. As even the intervenors concede,
VI. WAS 2001 PA 115 VALIDLY ENACTED?
In keeping with the one-person, one-vote principles, the Legislature sought to minimize the population disparity among districts to the greatest extent possible. In § 4(e)(i) of 2001 PA 115, it said the following about the population of the districts:
The population of districts 1-9 and 11-15 is 662,563. The population of district 10 is 662,562.
However, after passage of SB 546 by both houses, it was discovered that two census tracts16 had been omitted from the bill‘s description of the districts.17
Those tracts include 4,578 people. It is undisputed that totaling the populations of the districts as described in SB 546, Districts 1-14 had the totals specified in § 4(e)(i). However, the description of District 15 included exactly 4,578 fewer people than the population of the district stated in that section.
The Secretary of the Senate, in reliance on Rule 12 of the Joint Rules of the Senate and House of Representatives,18 corrected the bill by inserting references to those census tracts in the description of District 1519 in the enrolled bill that was submitted to the Governor, and that he approved.
Plaintiffs argue that because of these events, 2001 PA 115 was not validly enacted, citing
Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall
have 14 days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law.
The parties disagree about whether this was a mere technical error, which came within the language of Joint Rule 12. However, that is not the question. The courts do not review claims that actions were taken in violation of a legislative rule. As we explained in Anderson v Atwood, 273 Mich 316, 319; 262 NW 922 (1935):
Rules of legislative procedure, adopted by the Legislature and not prescribed by the Constitution, may be suspended and action had, even if contrary thereto, will not be reviewed by the courts.22
Thus, whether the action by the Secretary of the Senate in correcting the omission of the two census tracts was authorized by Joint Rule 12 is irrelevant. The question is whether the change violates the constitutional provisions governing the enactment of legislation. If it does, compliance with Joint Rule 12 will not save the statute;23 if it does not, a violation of the
The issue is whether the correction by the Secretary of the Senate was a change that invalidates the statute under the governing constitutional provisions. Plaintiffs rely particularly on language from Beacon Club v Kalamazoo Co Sheriff, 332 Mich 412; 52 NW2d 165 (1952). There, through clerical error, the version of the bill initially presented to the Governor omitted from the title a reference to an added section.25 We said:
The inclusion of the reference to the added section in the title of the measure here involved was essential to its validity. Its omission in the original draft of the enrolled act was more than a mere clerical error. We think it may be assumed that the legislature considered the section in question as a material part of the bill. As a result of the error in printing, the enrolled act submitted to the governor differed materially in substance from the draft of the measure as passed by the legislature. [332 Mich 418 (emphasis in original).]
The facts of Beacon Club are quite different from those of this case.26 The language from that case on
On several occasions we have permitted correction of discrepancies in statutes where the legislative intent was clear. For example, in People ex rel Gale v Supervisor of Onondaga, 16 Mich 254 (1867), the title of the bill as enacted by the Legislature referred to the levying and collecting of a “bounty” tax in the Township of Onondaga. After passage, through a clerical error, the word “county” was substituted for “bounty,” and the bill was signed by the Governor with that mistake. We rejected the argument that the discrepancy invalidated the bill, because it was not a mistake that could mislead anyone who read the act. 16 Mich 258.
The issue in Beacon Club was whether the Governor‘s initial return of the document to the House precluded the Clerk from resubmitting the corrected bill. This Court concluded that the previous submission of the incorrect bill was a nullity and that the legislation should not be invalidated on the basis of an error that was properly corrected.
the sum of one hundred seventy-five thousand dollars for the purpose of carrying out the provisions of this act: Provided, That of the one hundred seventy-five [thousand] dollars so appropriated fifty thousand dollars is hereby appropriated for the purpose of purchasing, erecting and equipping the necessary buildings, machinery, boilers and equipment to be used in the manufacturer of twine and cordage, together with a warehouse at the State prison at Jackson, Michigan, and the remaining sum of one hundred twenty-five thousand dollars is hereby appropriated to constitute a “revolving fund” to be disposed of in such manner as herein provided. [149 Mich 387-388.]
The word “thousand” in brackets was not in the bill as enrolled and signed by the Governor, but was contained in the bill as passed by both houses of the Legislature.29 As in the instant case, we found the mathe-
It is perfectly manifest that the legislature by this proviso appropriated $50,000 for the purpose of purchasing, erecting, and equipping the necessary buildings, and it is equally obvious that that $50,000 could not be subtracted from $175, and that the $175 was plainly intended to mean $175,000 is again made manifest by the fact that in the same clause after appropriating $50,000 the legislature further appropriated a remaining $125,000 which must be a remainder after deducting $50,000 from $175,000. It is a clerical error which corrects itself and leaves nothing doubtful. Such clerical errors will not be permitted to defect the plain intent of the legislature. [149 Mich 388 (emphasis in original).]
Plaintiffs’ response is that this principle does not apply because one must look beyond the face of 2001 PA 115 to identify the correct placement of the census tracts. That is, because the act itself does not include the population figures for each census tract, one must resort to external sources to find that data.30 However, the need to resort to census data does not invalidate the statute. The information that one must examine is the official government data that are required to be used in congressional redistricting, of which judicial notice may be taken under MRE
some errors are such that, if uncorrected, they would render a bill internally incoherent and illogical. Where the intent is clear, such clerical errors can be corrected. Board of Control itself is a good example. The word “thousand” can certainly be said to be essential to the substance of the bill: without its insertion, the appropriation intended by the Legislature could not have been implemented. The point is that, from the context, it was clear that the word was meant to be included, just as it is clear in this case that the two census tracts were intended to be included in District 15.
We therefore conclude that the correction of SB 546 by the Secretary of the Senate to include the two omitted census tracts in District 15 implemented the clear intent of the Legislature that the tracts be included in that district and does not invalidate the statute.32
As set forth above, 1999 PA 221 included guidelines for future congressional redistricting plans. Similarly, the procedural provisions of 1999 PA 222 purport to direct us to review any enacted redistricting plan for compliance with those guidelines.
Plaintiffs claim that 2001 PA 115 must be struck down because it does not comply with the secondary guidelines of
It is a fundamental principle that one Legislature cannot bind a future Legislature or limit its power to amend or repeal statutes. Absent the creation of contract rights, the later Legislature is free to amend or repeal existing statutory provisions. See Detroit v Detroit & Howell Plank Rd Co, 43 Mich 140, 145; 5 NW 275 (1880); Stone v Mississippi, 101 US 814, 816-818; 25 L Ed 1079 (1879). As we explained in Atlas v Wayne Co Bd of Auditors, 281 Mich 596, 599; 275 NW 507 (1937):
The act of one legislative body does not tie the hands of future legislatures. Cooper, Wells & Co v City of St Joseph, 232 Mich 255 [205 NW 86 (1925)]. The power to amend and repeal legislation as well as to enact it is vested in the legislature, and the legislature cannot restrict or limit its right to exercise the power of legislation by prescribing modes of
procedure for the repeal or amendment of statutes; nor may one legislature restrict or limit the power of its successors . . . . One legislature cannot enact irrepealable legislation or limit or restrict its own power, or the power of its successors, as to the repeal of statutes; and an act of one legislature is not binding on, and does not tie the hands of, future legislatures.
We recently reiterated this principle in Ballard v Ypsilanti Twp, 457 Mich 564, 569; 577 NW2d 890 (1998):
[T]he Legislature, in enacting a law, cannot bind future Legislatures. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991); citing Harsha v Detroit, 261 Mich 586; 246 NW 849 (1933).
Thus, as even plaintiffs concede, the 2001 Legislature was not bound to follow the guidelines in
However, plaintiffs rely on § 4(a) of 2001 PA 115, which they believe constitutes an incorporation of the 1999 standards in the 2001 districting act:
In adopting the redistricting plan for congressional districts, it is the intention of the legislature to comply fully with section 3 of the congressional redistricting act, 1999 PA 221,
MCL 3.63 .
The paramount rule of statutory interpretation is to give effect to the intent of the Legislature. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We begin with the language of the statute itself, In re MCI Telecommunications, 460 Mich 396, 411; 596 NW2d 164 (1999), and also consider the context in which the language is used,
The parties have not cited any authority relevant to interpreting an unusual statutory provision such as this one, in which it is essentially claimed that the substantive provisions of a statute may be challenged on the ground that they fail to meet standards set by the statute itself. In our view, § 4(a) does not incorporate the 1999 guidelines as an enforceable provision of 2001 PA 115 that would permit review of the redistricting plan adopted by that statute.33 Rather, § 4(a) is merely part of the Legislature‘s explanation of the principles it used in developing the plan. This interpretation is reinforced by the remainder of § 4, which contains a number of such explanatory provisions that in no sense could create bases for challenges to the redistricting plan. In its entirety, § 4 reads:
All of the following apply to the redistricting plan in section 1:
(a) In adopting the redistricting plan for congressional districts, it is the intention of the legislature to comply fully with section 3 of the congressional redistricting act, 1999 PA 221,
MCL 3.63 .(b) The number of county breaks in the redistricting plan is determined by the following principles:
(i) Breaking a county line means assigning part of the population of a county to 1 or more counties in the formation of a district.
(ii) If population is shifted from a county to a single election district, including a district from 2 geographically-separate areas, there is 1 break. Except as provided in sub-
paragraph (iii), if population from a county is shifted to 2 or more election districts, there are 2 or more breaks. (iii) If 1 part of a county is shifted to a district and the rest of the county is shifted to another district, there is 1 break.
(c) The redistricting plan was designed to comply fully with both section 2 of the voting rights act of 1965, Public Law 89-110,
42 USC 1973 , and the requirements of the equal protection clause of amendment XIV of the constitution of the United States, as set forth in Shaw v Reno, 509 US 630 (1993), and subsequent cases concerning racial gerrymandering. In light of these dual obligations, the plan avoids any practice or district lines that result in the denial of any racial or ethnic group‘s equal opportunity to elect a representative of its choice and, at the same time, does not subordinate traditional redistricting principles for the purpose of accomplishing a racial gerrymander or creating a majority-minority district. As a consequence, the plan does not result in retrogression or dilution of minority voting strength, particularly in light of the demographic limitations caused by relative population losses and the neutral criteria set forth in section 3 of the congressional redistricting act, 1999 PA 221,MCL 3.63 . However, the plan does not sacrifice traditional neutral principles, such as, most importantly, preservation of county and municipal boundaries, for the purpose of engaging in a gerrymander that unnecessarily favors 1 racial group over others.(d) The plan furthers the underlying purpose of the state constitution of 1963 by facilitating effective representation in the legislature where elected representatives can advance the shared interests of unified municipalities or counties. It does so without sacrificing voting rights act of 1965 principles, equal electoral opportunities, or racial fairness.
(e) The redistricting plan for congressional districts consists of 15 single member districts comprised of convenient territories contiguous by land. All of the following apply to the plan:
(i) The population in each of districts 1-9 and 11-15 is 662,563. The population of district 10 is 662,562.
(ii) The number of breaks in county boundaries is 11.
(iii) The number of breaks in city and township lines is 14. (iv) No congressional district is wholly contained within a city.
For example, if the population totals in § 4(e)(i) turned out to be wrong, that would not be a basis for overturning the redistricting plan. Rather, the question would be whether the plan itself meets the federal equal population requirement.
Thus, in context, § 4(a) of 2001 PA 115 constitutes the Legislature‘s announcement of its conclusion that the redistricting plan it was adopting is in compliance with all applicable guidelines for redistricting.
Election redistricting is principally a legislative function.34 Legislative action is entitled to great deference in such matters, and the courts should only intervene when the Legislature has failed to perform its function in a constitutional manner.35 The Legislature was not bound to follow
Congressional redistricting is primarily a function of the Legislature. Its exercise of that power can be challenged on the basis of federal requirements for congressional redistricting, which derive their authority from the underlying federal constitutional and statutory provisions, rather than the Michigan Legislature‘s references to them. However, in this litigation, plaintiffs do not allege that the redistricting plan adopted by 2001 PA 115 fails in any respect to comply with applicable federal guidelines. Whether the statute was validly enacted is a question that can be raised as a challenge under the Michigan Constitution, but, on the facts of this case, the correction of the enrolled bill before submission to the Governor does not invalidate the statute. The redistricting guidelines in 1999 PA 221 were not binding on the Legislature in adopting the 2001 redistricting plan, and its reference to
CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.
CAVANAGH, J. (concurring). As the arguments by the majority and the very able dissent demonstrate, it is a close question whether the variance between the bill as passed by the Legislature and as approved by the Governor is sufficiently great to prevent 2001 PA 115 from having been validly enacted. In a sense, as the dissent notes, the variance is an important one, because inclusion of the two omitted census tracts is
The majority correctly notes that redistricting is primarily a legislative function, and the courts are extremely reluctant to intervene in the process. Where we have become involved in the past, it was because the Legislature and Governor failed to adopt apportionment plans, and, even as we developed plans in order to provide for the continuity of government by ensuring that a constitutionally apportioned Legislature could be elected, we have given them every opportunity to act. See In re Apportionment of the State Legislature-1992, 439 Mich 715, 722, 724; 486 NW2d 639 (1992); In re Apportionment of State Legislature-1982, 413 Mich 96, 142; 321 NW2d 565 (1982).
In recognition of the inappropriateness of judicial intervention into the redistricting process, the disruption that would occur in the upcoming election if the matter were to be returned to the Legislature for reenactment of the plan, with a return trip to this Court a very real probability, and the fact that the correction of the bill by the Secretary of the Senate conformed the bill to the clear intention of the Legislature, I concur in the result reached by the majority.
KELLY, J. (dissenting). Public Act 115 of 2001 suffers from fatal flaws inflicted on it by the Secretary of the Senate. As a consequence of her actions, the bill presented to and signed by the Governor was never voted on by the Legislature. Hence, it violated the
The majority‘s finding that the addition of two census tracts by the Secretary of the Senate was permissible is erroneous. The legal issue regarding it is not accurately stated in the per curiam opinion. It is not a question whether the Court will review the Legislature‘s violation of its own rules. Rather, it is a question whether, in violating the Legislature‘s rules, the Secretary of the Senate exceeded her authority and violated the state constitution.
I would hold that the additions rendered the act invalid. The Legislature should be instructed to pass a new act, following the precepts laid down in the Michigan Constitution. It is for the Legislature, not this Court and not the Secretary of the Senate, to fashion the bill so as to be legally valid.
THE BACKGROUND
The enrolled bill that the Legislature passed, 2001 PA 115, describes which state governmental units are to be within which congressional districts. The act refines the description where a county or a municipality is split, explicitly stating which census tracts and census blocks belong in which district.1
After the House and the Senate adjourned, the Secretary of the Senate added two additional census tracts to the enrolled bill.3 The two tracts contain 4,578 persons. Therefore, the bill the Governor signed allocated 4,578 persons in two census tracts to a congressional district the constituency of which had not been approved by the Legislature.
“OBVIOUS TECHNICAL ERRORS”
Defendants and intervenors defend the action of the Secretary of the Senate, arguing that Rule 12 of the Joint Rules of the Senate and House of Representatives permitted it. That rule states that the Secretary shall correct “obvious technical errors.”
[T]he Secretary of the Senate and Clerk of the House of Representatives, as the case may be, shall correct obvious technical errors in the enrolled bill or resolution, including adjusting totals, misspellings, the omission or redundancy of grammatical articles, cross-references, punctuation, updating bill or resolution titles, capitalization, citation formats, and plural or singular word forms.
Under ejusdem generis, general terms are interpreted to include only items that are “of the same kind, class, character, or nature as those specifically enumerated.” Id. at 718-719. Here the general term is “obvious technical errors.” The specific terms describe minor, nonsubstantive clerical or grammatical errors. While more errors than those specified are envisioned, when ejusdem generis is applied, they should include solely errors of the same class as those that are listed.
The omission of census tracts does not involve a misspelling, a grammatical article, punctuation, a title, capitalization, citation format, or plural or singular word forms. It does not involve adjusting totals. It should be noted that the bill fails to contain a number representing the population in each listed census tract. Hence, one cannot tabulate the total population in any district by totaling the population of each tract appearing there. Presumably if, as defendants assert, 4,578 people were missing from District 15, one could have ascertained that fact if the tracts listed had included a number representing the population in each. However, even then, one could not have ascertained from the face of the bill that the missing tracts
What it does involve is the utter omission of vital, substantive information. This is an error of a different kind and class from the “obvious technical errors” listed in Rule 12.
Second, not only does the error here not pass legal scrutiny as an obvious technical error, it does not pass a plain language reading either. “Obvious” means “easily seen, recognized, or understood; open to view or knowledge . . . lacking in subtlety.” Random House College Dictionary (1988). A perusal of the bill as passed would never reveal that the tracts in question were missing. Documents outside the bill would have to be consulted to show it. Hence, as the error is not open to view or lacking in subtlety, it is not “obvious” in the commonly understood meaning of the word.
Defendants argue that the error was obvious because the total population in all the tracts intended for District 15 was listed in the act, 662,563 persons. They consider the error obvious because one can discover it by (1) consulting documents showing the number of people in each of District 15‘s census tracts, figures not listed in the bill, then (2) totaling them to determine if they reach 662,563. If they do not, one knows that an error was made.
This argument confuses what is obvious with what is ascertainable. One must consult the census data for one county, eight cities, eight townships, and fifty-one census tracts to learn that the population figure stated in the bill for District 15 is not met. Once that has been completed, one knows only that an error has been made. It could be that the Legislature miscalculated the total population in District 15. It could
ANDERSON v ATWOOD DISTINGUISHED
The majority cites Anderson v Atwood4 for the proposition that this Court will not review the Legislature‘s failure to comply with its own rules of procedure. It is true that in Anderson we did not order recognition of an act that died after the Legislature withdrew it from the Governor. However, Anderson is inapposite to the case before us.
Here, the bill did not die because of an alleged violation of the rules. Rather, Rule 12 was used to alter the enrolled bill without the approval of the Legislature. As a consequence of the distinctly differing facts in the two cases, the legal question in this case is quite different. It is whether either a legislative rule or the constitution authorizes the Secretary of the Senate to add to an enrolled bill vital, substantive information not ascertainable from the bill that the Legislature omitted.
Anderson does not stand for the proposition that this Court will not review an action taken under a rule of legislative procedure when the action is proscribed by the constitution. The addition of substan-
THE APPLICABILITY OF ART 4, § 33 OF THE CONSTITUTION
The Michigan Constitution provides that no bill becomes law without the consent of a majority of the members elected to and serving in each house.
The majority finds that the changes made in the enrolled bill were technicalities; hence, they did not substantially alter the bill passed by the Legislature. The precedent of this Court does not support that finding. Rather, it establishes that the only changes permissible in the text of a bill between passage and submission to the Governor are the addition of words that (1) are not essential to the substance of the bill and (2) mislead no one. Michigan State Prison Bd of Control v Auditor General, 149 Mich 386; 112 NW 1017 (1907).5
As has been demonstrated herein, the addition of two census tracts was essential to the substance of the bill. It is without contest that, without the addition, District 15 was incomplete and 4,578 people were left without a congressional district. Also, the addition is misleading. It causes one to believe that the Legislature intended the tracts to be in District 15. The truth appears to be that the Legislature had no position with respect to these tracts. It simply overlooked them.
A holding that the action of the Secretary of the Senate was unconstitutional would be in accord with our decision in Rode v Phelps6 where we observed, relative to the role of the Legislature in lawmaking:
The people speak, in the enactment of laws, through the Legislature, acting within the limits of the Constitution; and any holding which would authorize or permit laws, or any part of any law, to be ordained or created in any other way, would be inconsistent with the logic of our free institutions, and dangerous to the safety and security of the liberties of the people.
It would be consistent, also, with our holding in Stow v Grand Rapids, 79 Mich 595; 44 NW 1047 (1890). In that case, we ruled that the inclusion of immediate effect by the Clerk of the House of Representatives was an unconstitutional addition to the bill passed by the Legislature.
This state has no case law allowing the addition of substantive items to a bill between passage and sub-
The majority‘s use of these cases to justify the addition of substantive items like a census tract permits the Secretary of the Senate to engage in fact finding to determine legislative intent. It permits that individual to speak for the Legislature in a manner never before permitted in Michigan. The designation of voting districts is a legislative decision. Williams v Secretary of State, 145 Mich 447; 108 NW 749 (1906). It cannot be a mere technical correction for the secretary to add 4,578 people to a congressional district.
The case most nearly on point with the one before us was decided by the Supreme Court of Kansas. Harris v Shanahan, 192 Kan 183; 387 P2d 771 (1963). It involved apportionment of the Kansas Legislature. The bill submitted to the governor omitted a city of 8,800 people from any senatorial district.
The Kansas court rejected arguments that the omission was technical and that the court should correct it to prevent constitutional error. In so ruling, it observed:
We assume that the intention of both houses of the legislature and of the governor was to enact a law which gave adequate senatorial representation to every citizen of Kansas, including the residents of the city of Leawood. No one questions that fact. But we are confronted with what
was done, not what the legislature may have really intended to do. [Id. at 786.]
In Harris, as here, the bill passed by both houses of the legislature was not the bill submitted to and signed by the governor. The Kansas court found that the defect was one that the legislature alone could correct.
Since the bill submitted to the Governor in the case before us contained substantive, not technical, additions, it was not the bill passed by the Legislature. And since the bill passed by the Legislature was never submitted to the Governor,
CONCLUSION
I would hold the Secretary of the Senate‘s modification invalid because it violates legislative Rule 12 and, most significantly, it violates the Michigan Constitution. Adding tracts to the description of a legislative district is both a substantive provision and it is misleading. A fair reading of Rule 12 based on plain meaning or a statutory construction using ejusdem generis will not permit us to construe the omission as an obvious technical error. The secretary‘s change made a substantive alteration to the reapportionment bill. As a consequence, the bill passed by the Legislature was not submitted to the Governor, a violation of the Michigan Constitution. The bill that was passed was never submitted to the Governor. Hence it never became law.
The majority chooses to pass off as nonserious my conclusion that the Secretary of the Senate‘s changes to the bill were substantive and not a mere adjust-
To remedy this troubling situation, the Court should avoid legislating. Rather, it should afford the Legislature the opportunity to heed its constitutional mandate to reapportion in accordance with
If there is to be a judicial determination of congressional reapportionment, it should occur only after the Legislature has shown itself unable to perform its constitutional duty to reapportion.
After remand, should the Legislature be unable to pass a valid reapportionment bill and give it immediate effect, it may return to this Court, seeking further and timely relief.7 Because of the increasingly short timetable involved in preparing for the congressional elections, this Court should retain jurisdiction of the matter.
It is regrettable that an error on the part of the Secretary of the Senate should defeat the action of the Legislature. This is especially true as the congressional reapportionment law is of great public impor-
Notes
DISTRICT 02
Allegan County (part)
Dorr twp (part)
TRACT 030401 including block(s)
1006, 1007, 1008, 1009 . . . .
By contrast, it is not clear from the text of the bill here that the Legislature intended any more tracts to be included in District 15, much less
(a) The constitutional guideline is that each congressional district shall achieve precise mathematical equality of population in each district.
(b) The federal statutory guidelines in no order of priority are as follows:
(i) Each congressional district shall be entitled to elect a single member.
(ii) Each congressional district shall not violate section 2 of title I of the voting rights act of 1965, Public Law 89-110, 42 USC 1973.
The inclusion of the federal guidelines for districting in MCL 3.63(a), (b) represents an appropriate recognition of the controlling federal law. However, those guidelines derive their force not from the act of the Michigan Legislature, but, rather, from the underlying federal constitutional and statutory provisions. See Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964); California Assembly v Deukmejian, 30 Cal 3d 638; 180 Cal Rptr 297; 639 P2d 939 (1982).(1) Is this action properly brought under MCL 3.72?
(2) Is review of the congressional redistricting plan by this Court discretionary or compulsory under 1999 PA 222?
(3) What deference, if any, should this Court give to the redistricting plan adopted by the Legislature?
(4) Under separation of powers principles set forth in Const 1963, art 3, § 2, may this Court modify or reject the redistricting plan adopted by the Legislature and adopt its own redistricting plan?
(5) Do the provisions of MCL 3.74, specifying the procedures this Court is to follow in reviewing a congressional redistricting plan, violate Const 1963, art 3, § 2, or art 6, § 5?
(6) Do the standards of MCL 3.63 apply to review of the redistricting plan adopted in 2001 PA 115?
(A) If the standards of MCL 3.63 apply, are those standards exclusive?
(i) If they are exclusive, does the provision of MCL 3.63(c) that the secondary guidelines are “in order of priority” mean that one does not consider a criterion of lower priority unless two plans are equivalent with respect to all of the criteria of higher priority?
(ii) If they are not exclusive, what other criteria are applicable?
(B) If the standards of MCL 3.63 do not apply, what criteria should be used to review a redistricting plan?
(7) How does one define a “break” of a county boundary?
(8) How does one define a “break” of a city or township boundary?
The supreme court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.
[T]he Secretary of the Senate and Clerk of the House of Representatives, as the case may be, shall correct obvious technical errors in the enrolled bill or resolution, including adjusting totals, misspellings, the omission or redundancy of grammatical articles, cross-references, punctuation, updating bill or resolution titles, capitalization, citation formats, and plural or singular word forms.
With the exception of the few mandatory provisions noted the Constitution of Iowa has given the General Assembly a free hand in determining its rules of procedure. Whether either chamber strictly observes these rules or waives or suspends them is a matter entirely within its own control or discretion, so long as it observes the mandatory requirements of the Constitution. If any of these requirements are covered by its rules, such rules must be obeyed, but the observance or nonobservance of its remaining rules is not subject to review by the courts.
The corollary of that principle is that immaterial errors can be corrected without invalidating the enactment. E.g., Application of Fisher, 80 NJ Super 523, 527-528; 194 A2d 353 (1963), and Childers v Couey, 348 So 2d 1349, 1351 (Ala, 1977).
Without commenting on the correctness of the Harris decision under Kansas law, we note that it lacks a critical feature that is present in this case. In the Kansas case, state legislative districts were being apportioned, which do not require the exactness of population equality that must be used in congressional redistricting. The Kansas plan apparently had districts that ranged approximately ten percent above or below the average population figure. 192 Kan 189. Thus, it would have been possible to place the omitted city and its approximately 8,800 people in one of several districts. By contrast, in this case, the exact correspondence of the population of the omitted census tracts with the population deficit of District 15 makes inescapable the conclusion that the Legislature intended to place those tracts in that district.