Lead Opinion
(1) The power of referendum of the Michigan Constitution “does not extend to acts making appropriations for state institutions . . . .” Const 1963, art 2, § 9.
(2)
(3) An appropriation of $1,000,000 is an “appropriation,” and the Department of State Police is a “state institution.”
(4) Therefore, the power of referendum of the Michigan Constitution does not extend to
Accordingly, consistent with Const 1963, art 2, § 9 and an unbroken line of decisions of this Court interpreting that provision,
Pursuant to MCR 7.317(C)(4), the clerk is directed to issue the judgment order in this case forthwith.
Notes
Co Rd Ass’n of Michigan v Bd of State Canvassers,
Concurrence Opinion
I concur in the result and reasoning of the majority opinion. I write to emphasize that the intervening defendant retains a direct remedy, the initiative process. Under our state constitution, this remedy is available even when the Legislature has made an appropriation to a state institution.
I also wish to emphasize that the Legislature’s subjective motivation for making a $1,000,000 appropriation in
Our cases follow Justice Cooley’s powerful exposition of this doctrine in his seminal work on constitutional law. It is as persuasive to us as it was to our predecessors:
The validity of legislation can never be made to depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt. There is ample reason for this in the fact that the people have set no authority over the legislators with jurisdiction to inquire into their conduct, and to judge what have been their purposes in the pretended discharge of the legislative trust. This is a jurisdiction which they have reserved to themselves exclusively, and they have appointed frequent elections as the occasions and the means for bringing these agents to account. A further reason is, that to make legislation depend upon motives would render all statute law uncertain, and the rule which should allow it could not logically stop short of permitting a similar inquiry into the motives of those who passed judgment. Therefore the courts do not permit a question of improper legislative motives to be raised, but they will in every instance assume that the motives were public and befitting the station. They will also assume that the legislature had before it any evidence necessary to enable it to take the action it did take. [Cooley, Constitutional Law, pp 154-155.]
The parties and amicus curiae have asserted contradictory positions regarding the legislative motive for the appropriation in
Concurrence Opinion
I join and fully concur in the admirably concise majority opinion. I write separately to provide the rationale and analysis for my conclusion that
I. THE QUESTION BEFORE THE COURT
There is no gainsaying that
n. FACTUAL AND PROCEDURAL BACKGROUND
In December 2000, the Legislature enacted
Intervening defendant is a group that filed with defendants Secretary of State and Board of State Canvassers a petition, signed by approximately 260,000 Michigan voters,
On March 23, 2001, plaintiffs — two organizations that lobbied for the law and three individuals who want to apply for concealed weapons permits — filed a complaint for mandamus in the Court of Appeals, seeking to prevent the Board of State Canvassers from proceeding with the canvass of the petitions. Plaintiffs argued that
As stated, plaintiffs contended that two provisions in
In an order dated April 9, 2001, the Court of Appeals granted People Who Care About Kids permission to intervene and accepted the amicus curiae brief of the Michigan Association of Chiefs of Police. The panel then dismissed plaintiffs’ complaint for mandamus, holding — on a ground not raised by the parties — that
the matter is not ripe for this Court’s consideration. The Board of State Canvassers has not completed its canvass of the referendum petitions. MCL 168.479.[5 ]
On plaintiffs’ application for leave to appeal, this Court remanded the matter to the Court of Appeals for plenary consideration of the complaint for mandamus.
On remand, the Court of Appeals denied plaintiffs’ request for mandamus, holding that “
We granted plaintiffs’ application for leave to appeal from the decision of the Court of Appeals.
in. controlling rules of constitutional construction
Of preeminent importance in addressing the matter at hand is an understanding of the particularized rules of textual construction that apply to constitutional provisions. “Each provision of a State Constitution is the direct word of the people of the State, not that of the scriveners thereof,” Lockwood v Nims,
Our primary goal in construing a constitutional provision — in marked contrast to a statute or other texts — is to give effect to the intent of the people of the state of Michigan who ratified the constitution, by applying the rule of “common understanding.” Recently, in People v Bulger,
In construing our constitution, this Court’s object is to give effect to the intent of the people adopting it. . . . “Hence, the primary source for ascertaining its meaning is to examine its plain meaning as understood by its ratifiers at the time of its adoption.” [Citations omitted; emphasis supplied.]
I agree with Justice Cavanagh’s reliance on Justice Cooley’s explanation of the rule of “common understanding”:
A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. “For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” [Federated Publications, Inc v Michigan State Univ Bd of Trustees,460 Mich 75 , 85;594 NW2d 491 (1999), quoting 1 Cooley, Constitutional Limitations (6th ed), p 81 (emphasis added).]
See also American Axle & Mfg, Inc v Hamtramck,
As expounded by Justice Cooley and this Court, the “common understanding” principle of construction is essentially a search for the original meaning attributed to the words of the constitution by those who ratified it. This rule of construction acknowledges the possibility that a provision of the constitution may rationally bear multiple meanings, but the rule is concerned with ascertaining and giving effect only to the construction, consistent with the language, that the ratifiers intended. Thus, our task is not to impose on the constitutional text at issue here the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer, but to search for contextual clues about what meaning the people who ratified the text in 1963 gave to it.
Our analysis, of course, must begin with an examination of the precise language used in art 2, § 9 of our 1963 Constitution. See American Axle, supra at 362. Art 2, § 9 provides, in relevant part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election atwhich a governor was elected shall be required.
No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority of the electors voting thereon at the next general election. [Emphasis supplied.]
As is apparent from the text of art 2, § 9, the people’s right of referral is expressly limited. The limitation relevant here is the first: There is no right of referral for “acts making appropriations for state institutions.” There is no dispute here that the Department of State Police is a “state institution” within the meaning of art 2, § 9. Nor is there any dispute that
IV. APPLICATION
A. WAS THE COMMON UNDERSTANDING OF THE ARTICLE 2, SECTION 9 LIMITATION ON THE RIGHT OF REFERRAL AT THE TIME OF RATIFICATION DIFFERENT FROM THE PLAIN MEANING OF THE LANGUAGE?
The majority construes the language of art 2, § 9 in a plain and natural manner. Thus, it concludes that
Justice Cavanagh asserts that the common understanding of art 2, § 9 is different from the plain meaning given to this constitutional provision by the majority. Those who suggest that the meaning to be given a provision of our constitution varies from a natural reading of the constitutional text bear the burden of providing the evidence that the ratifiers subscribed to such an alternative construction. Otherwise, the constitution becomes no more than a Rorschach
Interestingly, no one — not the dissents, the parties, or even the amici curiae — has attempted to provide a scintilla of historically based evidence that provides support for the belief that in 1963 the people of this state understood the limiting language of
Within the limited time constraints occasioned by the exigencies of having to decide this case by the July 1, 2001, effective date of
Indeed, one might expect that the framers of our 1963 Constitution — the participants of the constitutional convention that drafted the constitutional text that was eventually ratified — would have provided some gloss on or construction of the intended meaning of the art 2, § 9 limitation on the right of referral. In point of fact, the framers provided none.
Surprisingly, during the entire constitutional convention, excepting references to the convention’s successive procedural approvals of the provision at issue, the framers never discussed the substance of art 2, § 9.
Particularly noteworthy in this regard is the “Address to the People” accompanying Const 1963, art 2, § 9. The address, officially approved by the members of the constitutional cdnvention, provides the text of each provision of the proposed constitution the people ratified in 1963 and a commentary, written in simple language, explaining the import of each provision and any changes the proposed constitution made to comparable provisions of the 1908 Constitution. That address was widely distributed to the public before the ratification vote.
Significantly, in the “Address to the People” accompanying Const 1963, art 2, § 9, the framers advise the people that this provision constitutes only a “revision” of Const 1908, art 5, § 1, and that the revision “eliminatfes] much language of a purely statutory character.” 2 Official Record, p 3367. The address also notes that the revision “specifically reserves the initiative and referendum powers to the people [and] limits them as noted . . . .”
Thus, the 1963 constitutional record provides no basis for concluding that the people were led to believe (or actually entertained the notion) that the art 2, § 9 limitation on the right of referral — “acts making appropriations for state institutions” — meant or was intended to mean anything other than what it plainly says. Similarly, I have been unable to locate (and no one has provided to the Court) any contemporaneous news articles or other documents circulated in the public domain that suggest that the public in 1963 had a specific or “common” understanding of art 2, § 9 that diverged from the natural and plain meaning of its text.
The absence of any evidence from the 1963 constitutional convention record or other contemporaneous articles in the public domain suggesting support for some kind of special “common understanding” about art 2, § 9 consistent with the dissents’ view (or any other) ought to be conclusive. In the absence of evidence on this point, this Court should accord the language in question its natural, plain meaning.
B. JUSTICE CAVANAGH’S ASSERTED “COMMON UNDERSTANDING” THAT “APPROPRIATIONS” MEANS “GENERAL APPROPRIATIONS” IS ALSO AT VARIANCE WITH THE STRUCTURE OP THE CONSTITUTION
Lacking any evidence that the citizens believed they were ratifying a provision that meant something quite different from that of the plain language of art 2, § 9, Justice Cavanagh nevertheless presumes that this must have been the case. He is able to so conclude because he is convinced that the natural construction the majority gives to art 2, § 9 produces an “absurd result”:
I am confident that the constitutional right of referendum, in this narrow context, should not be taken away by so transparent an artifice. Justice Cooley’s “great mass of the people” would, if asked, surely suppose that “acts making appropriations for state institutions,”which deny the people’s reserved power of referendum, are general appropriations bills containing substantial grants to state agencies. Those grants would have to ensure the viability of the agencies or, as the Court of Appeals put it, support the agencies’ “core functions.” 246 Mich App 82 ;630 NW2d 376 (2001). The people of Michigan, I am certain, never intended to authorize the 2000 lame duck Legislature’s legerdemain. [Post at 411.][15 ]
I believe that Justice Cavanagh’s presumption is unfounded because (1) it is not grounded in an assessment of what the voters in 1963 understood art 2, § 9 to mean, and (2) it does not give sufficient weight or meaning to the expressly stated competing language and values embodied in our constitution or the differences between the power of initiative and referral.
In this regard, it is important to consider the relationship between the constitutional power accorded to the Legislature, Const 1963, art 4, § 1, and the specific means chosen in the initiative and referendum provisions that check the power of the Legislature.
Stated otherwise (leaving aside momentarily the question of what the people understood in 1963 the art 2, § 9 term “appropriations” meant), it appears unchallenged that “acts making appropriations” are always subject to nullification by initiative, but such acts are exempted from the referral power. Because exercise of both the referral and initiative powers may result in the nullification of a law enacted by the Legislature, one may well ask: Why, when the people enacted two provisions that are clearly intended as checks on the constitutional power of the Legislature, would the people substantially limit their power of referral, but not their power of initiative? Based upon the structure of these provisions, the answer appears obvious that the people feared more the circumstance of preventing acts involving “appropriations” from becoming law (the referral power) than they feared a nullification vote on the very same bill after it became
Justice Cavanagh asserts that the “appropriations” limitation on the people’s referral power could only have been intended to mean “general appropriations bills containing substantial grants to state agencies.” Post at 411. I question why that conclusion is justified, particularly given that even the dissent notes the framers’ drafting precision concerning matters involving the general budget. See post at 409-410. I wholeheartedly agree with Justice Cavanagh that the framers intended to improve and increase legislative accountability for legislative general budgeting processes and were very precise in their draftsmanship to accomplish this goal. See, e.g., Const 1963, art 4, § 31 (general appropriation bills, priority, statement of estimated revenue).
appropriations- for the current fiscal year’s operation. Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill. One of the general appropriation bills as passed by the legislature shall contain an itemized statement of estimated revenue by major source in each operating fund for the ensuing fiscal period, the total of which shall not be less than the total of all appropriations made from each fund in the general appropriation bills as passed.
Concerning art 4, § 31, in the Address to the People the framers advised:
This is a new section designed to accomplish two major purposes:
1. To focus legislative attention on the general appropriation bill or bills to the exclusion of any other appropriation bills, except those supplementing appropriations for the current year’s operation.
2. To require the legislature (as well as the governor by a subsequent provision) to set forth by major item its own best estimates of revenue.
The legislature frequently differs from executive estimates of revenue. It is proper to require that such differences as exist be specifically set forth for public understanding and future judgment as to the validity of each. [2 Official Record, p 3375.]
Thus, the people were specifically advised in 1963 that the focus of this provision was to ensure accountability for the making of the entire state budget. A reciprocal provision applicable to the Governor, art 5, § 18,
The point is that, contrary to Justice Cavanagh’s suggestion, none of these general budget provisions added in 1963 were connected by the framers to the older language of art 2, § 9. More important for our prnpose of discerning whether there was a “special” common understanding of art 2, § 9 as the dissent supposes, it is noteworthy that the framers clearly never communicated to the people that the new general budget provisions had any bearing on other legislative acts, such as
Most important to my conclusion that Justice Cavanagh is simply wrong in supposing that art 2, § 9 refers to general appropriation bills is the fact that art 4, § 31 provides a definition of “appropriation bill,”
When it is so apparent throughout the 1963 Constitution that the framers sought to clarify the budget-related appropriations process, I think that the above-noted omissions underscore that the kind of “appropriations” referenced in art 2, § 9 have nothing to do with those referenced in art 4. Further, there is no evidence of which we are aware that in 1963 the people had a contrary “common understanding.”
Moreover, greater assurance that there was no “common understanding” contrary to the plain language of art 2, § 9 is derived from the controversy that culminated in this Court’s split decision in Todd v Hull,
[t]here is no question but that the act makes an appropriation. An act making an appropriation as used in the Constitution is a legislative act which sets apart or assigns to a particular purpose or use a sum of money out of what may be in the treasury of the State for a specific purpose and objects, — an act authorizing the expenditure of public funds for a public purpose. [Todd at 531.]
Regarding the referral question, these four justices additionally opined that
[t]he claim that plaintiffs are entitled to a referendum is effectually disposed of by the language of the Constitution itself because if the legislature had a right to give the act in question immediate effect, then it negatived the idea of a referendum. [Todd, supra at 535.]
The significance of Todd is not that it conclusively construed the same language at issue in this case. The fact is, Todd — a split decision — has no preceden-tial value. Todd is nevertheless highly relevant because it involves a claim, similar to the one made here, that the Legislature’s inclusion of an appropriation in
Todd demonstrates that the people were aware in 1963 that the Legislature had exercised what it believed to be its appropriation prerogative in such a fashion as to diminish the people’s right of referral. Notwithstanding, the people did not seek to change the constitutional referral language to preclude the Legislature from capriciously exercising its po wer of appropriation.
V. CONCLUSION
Determining the people’s “common understanding” of a relatively obscure constitutional provision rati-fled nearly forty years ago is admittedly a challenging deductive enterprise — one that must be grounded in the available evidence. Above all, it is not a psychic exercise. On the basis of the evidence we have independently sought, I conclude that there is no reliable evidence that the people commonly understood anything other than what art 2, § 9 plainly says: that the people’s power of referral is precluded concerning any
The majority’s decision today will undoubtedly disappoint those who passionately believe that
In the current charged political environment, the dissent makes an emotionally appealing argument: Why not just let the people decide? Simply answered, the people’s ability to decide by the referendum process is not infinite; rather, it is circumscribed by the limitations placed in the Michigan Constitution. While perhaps less satisfying to those who oppose
Finally, while it may be attractive to some, I believe that the dissenter’s approach is not only at odds with the constitution, but destroys the Legislature’s direct accountability to the people for its acts by interposing the judiciary as an arbiter of essentially political questions that are fundamentally legislative in character. Consider Justice Cavanagh’s tests of what he believes constitutes “appropriations” that do preclude referrals under art 2, § 9: (1) grants that “ensure the viability of [state] agencies”; or (2) grants that “support the agencies’ ‘core functions.’ ” (Post at 411.) Exactly how large an “appropriation” constitutes one sufficient to ensure the “viability” of a state agency or, for that matter, its “core function”? What is a state agency’s “core” function, what constitutes its “viability,” and who gets to decide these questions — the Board of Canvassers, the Secretary of State, the courts? The dissenters are eager to have the courts decide these questions. Perhaps there are members of the public who believe that the courts are competent to address these issues. I submit that these are Delphic questions that neither a judge nor the judicial system itself is best equipped to answer. More to the point, the tests the dissenters urge to assess whether an act making an appropriation is nonetheless amenable to referral despite the express constitutional limitation are simply ones made up from whole cloth and which have no basis in the text of our constitution. The judiciary is not authorized to create ways of evading the terms of our constitution; nor should the courts manufacture tests that amount to no more than providing a means of promoting sitting judges’ personal prefer-enees to accomplish such goals. Neither is a judicial function, and the public should never be confused on this issue. Our courts must refrain from engaging in such endeavors because they are beyond our constitutional authority and competence.
According to a letter written by Christopher Thomas, Director of Elections for the Department of State, an effective referendum petition requires 151,136 valid signatures (comprising five percent of voters in the last gubernatorial election). Approximately 260,000 signatures appear on the petition filed by defendants. Once the Board of Elections has declared the sufficiency of a referendum petition, the effectiveness of the law that is the subject of the petition is suspended until a vote at the next general election, November 2002 in this case. Const 1963, art 2, § 9; MCL 168.477(2).
On May 16, 2001, intervening defendant filed its own mandamus action, asking the Court of Appeals to require the Board of Canvassers to certify the petition. However, the Court of Appeals opinion in the instant case was issued on the same day, just before the filing of intervening defendant’s complaint. After the Board of Canvassers met for a second time and voted to certify the petition, the parties informed the Court of Appeals that the second mandamus action was moot.
MCL 28.425V.
MCL 28.425w(l) provides:
One million dollars is appropriated from the general fund to the department of state police for the fiscal year ending September 30, 2001 for all of the following:
(a) Distributing trigger locks or other safety devices for firearms to the public free of charge.
(b) Providing concealed pistol application kits to county sheriffs, local police agencies, and county clerks for distribution under section 5.
(c) The fingerprint analysis and comparison reports required under section 5b(ll).
(d) Photographs required under section 5c.
(e) Creating and maintaining the database required under section 5e.
(f) Creating and maintaining a database of firearms that have been reported lost or stolen. . . .
(g) Grants to county concealed weapon licensing boards for expenditure only to implement this act.
(h) Training under section 5v(4).
(i) Creating and distributing the reporting forms required under section 5m.
0) A public safety campaign regarding the requirements of this act.
MCL 168.479 provides:
[a]ny person or persons, feeling themselves aggrieved by any determination made by said board, may have such determination reviewed by mandamus, certiorari, or other appropriate remedy in the supreme court.
We stated in our remand order that
[t]his controversy is ripe for review because it is not dependent upon the Board of Canvassers’ counting or consideration of the petitions but rather involves a threshold determination whether the petitions on their face meet the constitutional prerequisites for acceptance. ... All of the information necessary to resolve this controversy, i.e., whether2000 PA 381 constitutes a law which is excepted from the referendum process under Const 1963, art 2, § 9, is presently available.
We indicated in our grant order that the only issue for our consideration was “whether
A Rorschach test is a personality and intelligence test that requires a subject to “interpret” inkblots. Webster’s New Collegiate Dictionary, 1977, p 1006.
The difference between my approach and that of the dissents is that I believe I have an obligation to establish from available historical evidence whether the “common understanding” diverged from the plain meaning of the language in the constitution. Because the dissents offer no such proofs, and presumably believe them to be unnecessary, it appears that the dissents believe that they can “intuit” the common understanding they prefer. Given their intuited conclusion about the people’s understanding, the dissents ignore the art 2, § 9 limitation on the power of referral. Justice Cavanagh’s dissent concludes that the limitation, if given effect, could not have been intended by the people because it causes a “constitutional invalidity.” Post at 411. This is pure tautological reasoning. A constitutional provision that contains its own limitation cannot be “invalidated” when one gives the limitation its natural import.
See 1 Official Record, Constitutional Convention 1961, p 758; 2 Official Record, Constitutional Convention 1961, pp 2390-2392, 2418, 2779, 2927-2928.
Because the “Address to the People,” or “Convention Comments,” constitutes an authoritative description of what the framers thought the proposed constitution provided, this document is a valuable tool in determining whether a possible “common understanding” diverges from the plain meaning of the actual words of our constitution. See Regents of the Univ of Mich v Michigan,
Equally of interest is the actual language of the two limitations of art 2, § 9 on the power of referral. The first precludes referrals concerning “acts making appropriations to state institutions” while the second precludes referrals concerning acts addressing “deficiencies in state funds.” Other than the meaning suggested by the words of the clause itself, we have no greater understanding of what the framers, much less the people, understood the second limitation to mean than we do of the first.
While in 1963 the question of government by plebiscite — direct action by the citizens through initiative and referendum as opposed to indirect action through their elected representatives — was a commonplace fact of American political life, in 1913, this was still a startlingly radical proposition and one rarely embodied in state constitutions of the era. In 1913, only a dozen or so states recognized a popular right of referendum and initiative. Detroit Free Press, March 22, 1913.
The public record concerning the 1913 amendment that incorporated the precursor of art 2, § 9 into the 1908 Constitution also fails to establish that the people then understood the “acts making appropriations” limitation to mean something other than what the language plainly suggests. We have been unable to locate from any source the actual 1913 amendment ballot language approved. Neither the Detroit Free Press nor The Detroit News Tribune did more than respectively advocate the rejection or adoption of the amendment. See, e.g., Detroit Free Press, March 22, 1913; The Detroit News Tribune, March 18, 1913. We have found no historical basis even for a “vicarious” common understanding of the kind asserted by Justice Cavanagh grounded in the ratification of the 1913 amendment.
In a different context in which this Court was construing a statute, we rejected the “absurd result” mode of construction. People v McIntire,
Justice Cavanagh also suggests that acts making grants that “ensure the viability of [state] agencies” or grants that “support the agencies’ ‘core’ functions” would also preclude a referendum. Of course, Const 1963, art 2, § 9 contains no textual support for either of the two tests.
“The legislative power of the State of Michigan is vested in a senate and a house of representatives.” Const 1963, art 4, § 1.
As noted, the current provision carries forward the language of Const 1908, art 5, § 1, that the referendum power does not extend to “acts making appropriations for state institutions and to meet deficiencies in state funds.” Art 2, § 9 uses the disjunctive “or” between the two categories of nonreferable items, as opposed to the conjunctive “and” in the art 5, § 1 version of the provision in the 1908 Constitution. We need not speculate about the possible meaning of this word change, because our only concern in this matter is with respect to the first limitation category.
Const 1963, art 4, § 31 provides:
The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill for items not in the budget except bills supplementing
Const 1963, art 5, § 18 provides:
The governor shall submit to the legislature at a time fixed by law, a budget for the ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures and estimated revenue of the state. Proposed expenditures from any fund shall not exceed the estimated revenue thereof. On the same date, the governor shall submit to the legislature general appropriation bills to embody the proposed expenditures and any necessary bill or bills to provide new or additional revenues to meet proposed expenditures. The amount of any surplus created or deficit incurred in any fund during the last preceding fiscal period shall be entered as an item in the budget and in one of the appropriation bills. The governor may submit amendments to appropriation bills to be offered in either house during consideration of the bill by that house, and shall submit bills to meet deficiencies in current appropriations.
The constitution also explicitly recognizes a nonbudgetary form of appropriation acts, those that appropriate public money for local or private purposes. See art 4, § 30. The point is, the constitution does not purport, as intimated by the dissent, to limit or define legislation that makes an appropriation as only those acts that concern general appropriations.
“Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill.” Art 4, § 31.
That provision of our 1908 Constitution — which contained language identical to that appearing in the 1908 version of art 2, § 9 — provided that
the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety .... [Const 1908, art 5, § 21 (emphasis supplied).]
Compare this “immediate effect” provision language with that of Const 1908, art 5, § 1 (the predecessor to Const 1963, art 2, § 9):
[T]he people reserve to themselves the power to . . . approve or reject at the polls any act passed by the legislature, except acts making appropriations for state institutions and to meet deficiencies in state funds.
* • ** *
The second power reserved to the people is the referendum. No act passed by the legislature shall go into effect until 90 days after the final adjournment of the session of the legislature which passed such act, except such acts making appropriations and such acts immediately necessary for the preservation of the public peace, health or safety, as have been given immediate effect by action of the legislature. [Emphasis supplied.]
Concurrence Opinion
(concurring). The issue before this Court is whether it will act as a court of law and read the constitution in accord with its plain language, or whether it will effect what many, perhaps even most, in this state view as a “good” thing. The majority opinion, in which I fully join, sets forth its analysis simply and straightforwardly. It does so
I. COURT OF APPEALS
Concerning the opinion of the Court of Appeals in this matter, I offer the following thoughts:
(1) The Michigan Constitution excepts from the referendum process “acts making appropriations for state institutions.” It may well have been preferable for the constitution instead to have excepted from the referendum process: (a) merely acts that are necessary in order for the state to “exercise its various functions free from financial embarrassment”; (b) merely acts appropriating monies without which state agencies “would cease to function,” or without which their “continued existence” would be in jeopardy; or (c) merely acts that pertain to the “core functions,” or that are not “peripheral to the core purpose,” of state agencies.
(2) In particular, the Court of Appeals has, without warrant, substituted its own judgment for that of “We, the people of the State of Michigan” who “have ordain[ed] and established] this constitution.”
(3) In a truly remarkable statement, the Court of Appeals asserts:
[E]ven if we were to conclude that the statutory expenditures constituted appropriations for state institutions as contemplated by [the constitution], we would nevertheless hold that the overarching right of the people to their “direct legislative voice” . . . requires that2000 PA 381 be subject to referendum.
I would respectfully suggest that the “overarching right of the people” is to have the constitution that they have ratified given respect and accorded its proper meaning. The fundamental flaw in the Court of Appeals statement is evident in its very assertion. Who is to say, for example, that this particular “overarching right,” “the right to a direct legislative voice,” is more “overarching” than the right of the people to have the legislative judgment of their
(4) It is hard to imagine a single statement more fundamentally at odds with the genuinely “overarching right” of the people to responsible constitutional government than that of the Court of Appeals. I repeat it, for it evidences a profound misunderstanding about the proper role of the judiciary that demands response:
[E]ven if we were to conclude that the statutory expenditures constituted appropriations for state institutions as contemplated by [the constitution], we would nevertheless hold that the overarching right of the people to their “direct legislative voice” . . . requires that2000 PA 381 be subject to referendum.
What this apparently means is that, “[e]ven if we were to conclude” that the constitution stated one thing, the Court of Appeals panel would still abide by its own views in holding that the constitution meant a different thing. Thus, it could be that “[e]ven if we were to conclude” that the constitution prohibited prior restraints on the press, we would “nevertheless hold” that the “overarching right” of persons to a fair trial requires that newspapers not write irresponsibly about high-profile criminal cases. Or it could be that, “[e]ven if we were to conclude” that the constitution prohibited denying criminal defendants a right to a jury trial, we would “nevertheless hold” that the “overarching right” of judicial efficiency requires that exceptions sometimes be made to this requirement. In other words, no matter what the actual language of the constitution, the Court of Appeals panel will, in effect, create a “higher” constitutional law whose requirements will supersede those of the constitution ratified by “we, the people.” This is not law; it is a prescription for judicial domination.
n. JUSTICE CAVANAGH’S DISSENT
Concerning the dissent of Justice Cavanagh in this matter, I offer the following thoughts:
(1) In addition to the various standards fashioned by the Court of Appeals in replacing those set forth by the Michigan Constitution, the dissent adds the standard of “great public significance.” Apparently, the* greater the “public significance” of a law, the more essential it is that a referendum be allowed to proceed, notwithstanding the language of the constitution. For what it is worth, I am in complete agreement that
(3) The dissent chastises the majority for having “neglected to recite” certain facts in its opinion. With all due respect, the majority has done no such thing. It has merely neglected to “recite” facts that are wholly irrelevant to its legal analysis, as is typically the case in our opinions. The majority, for example, views it as irrelevant for purposes of its legal analysis that the law under consideration is of “great public significance,” or, in particular, that the law relates to a highly divisive political controversy. Rather, the constitution means exactly the same thing whether the law at issue pertains to firearms, to farming irrigation, or to any other conceivable subject matter. Therefore, reciting the details or the political or legislative history of the statute before us, beyond identifying the appropriations that it makes, would add nothing to the constitutional analysis. Furthermore, contrary to what would have been the case if the dissent’s position had prevailed, “future litigants,” concerning whom the dissent expresses such concern, will henceforth be apprised of the unvarying meaning of the constitution, and will not be required to count noses about how many justices view the law at issue in their future case as being of “great public significance,” or whether the appropriations made in their future case involve a “core function” or are essential to the “continued existence” of some state agency.
(4) The dissent describes the majority’s constitutional analysis as one that “focuses narrowly on the superficially straightforward question,” as being “legalistic,” as being “pinched,” and as being “overly literal.” Such descriptions are typical of those uttered when a judge is frustrated in his ability to reach a particular result by the actual language of the law. Contrary to the dissent, the majority does not interpret the constitution “literally” or “legalistically.” There is simply no reasonable alternative interpretation to the words “acts making appropriations for state institutions.” Again, it may well be that the dissent’s formulation of the right of referendum is preferable to that of the constitution. However, such a determination is not for this Court to make — no matter how “publicly significant” a law. As Chief Justice Marshall recognized in Marbury v Madison, nearly two centuries ago, it is the responsibility of the judiciary to say what the law “is,” not what it believes that it “ought” to be.
(5) The dissent’s reference to Justice Cooley’s rules of constitutional interpretation is apt, but misses the point. Constitutional interpretation varies from statutory interpretation principally because constitutional language tends to be more concise, and to relate to broader expressions of principle, than does statutory language. The language of constitutions, therefore,
(6) It should be noted that the dissent does not ultimately rest its interpretation upon any specific language or phrase contained in the constitution, since it cannot do so. Instead, it relies upon such amorphous concepts as “the overall approach” to legislation taken by the constitution’s framers and the people who ratified it. But, rather than taking the framers and ratifiers of the constitution at face value and assuming that they intended what they plainly wrote, the dissent manages creatively to conclude that the framers and ratifiers meant something other than what they wrote. On what basis does it reach such a conclusion? Does the dissent identify convincing statements in support of that proposition by the framers? Does the dissent point to evidence that “we, the People” were misled into believing that “acts” or “appropriations” really did not mean “acts” or “appropriations?” Does the dissent offer new historical information that the ratifiers understood that Detroit Automobile Club, and other earlier decisions of this Court, were being reversed by the Constitution of 1963? No, there is no argument of this kind.
m. JUSTICE WEAVER’S DISSENT
Concerning the dissent of Justice Weaver in this matter, I offer the following thoughts:
(1) The dissent asserts that Detroit Automobile Club stands for the proposition that only appropriations that “enable the state to exercise its various functions free from financial embarrassment,” or without which state agencies would “cease to function,” are excepted from the referendum process. However, Detroit Automobile Club, does not say this at all; rather, it merely stands for the proposition that the Michigan Highway Department is a “state institution.” It does not even purport to address the issue of what constitutes “acts making appropriations.” Of course, even if the decision had said what the dissent asserts, no decision of this Court can permanently transform the plain language of the constitution.
(2) The dissent asserts that “the majority fails to recognize the importance of the referendum, and this Court’s responsibility to protect the people’s power of the referendum, derived from the constitution . . . .” However, a better characterization of this Court’s “responsibility,” in my judgment, is that we have a responsibility to protect the people’s power of referendum as set forth by the constitution, and we have a responsibility to protect the people’s power of representative self-government as set forth by the constitution. Indeed, the principal “responsibility” of this Court is to read the language of the constitution faithfully. If the people wish to modify their constitution, they may do so under the terms of article 12, and the majority will attempt to interpret the modified constitution faithfully. But the majority will not act as a continuing constitutional convention and dilute the people’s right to have their supreme law mean what it says.
IV. JUSTICE KELLY’S DISSENT
Concerning the dissent of Justice Kelly in this matter, I offer the following thoughts:
(1) The dissent contends that the majority “ignores” the meaning of the word “for” as used in the constitutional provision “acts making appropriations for state institutions.” I respectfully disagree. The relevant meaning of “for” in the instant context is “intended to belong to.”
(2) The dissent accurately asserts that “[w]e start by examining the provision’s plain meaning as understood by its ratifiers at the time of its adoption.” I agree with that statement and I believe that this is exactly what the majority has done. The dissent has failed to produce a scintilla of evidence to demonstrate that the people of this state in 1963 understood the language “acts making appropriations for state institutions” to mean anything other than what it plainly says.
(3) Because the dissent is unable to produce evidence to contradict the idea that the people intended their constitution to mean what its words convey, in the end, it also relies upon such amorphous concepts as “the fundamental purpose of the general power of referendum” to justify its interpretation of the law. However, there is no “general power” of referendum in Michigan, but only a specific power of referendum as defined by the constitution. And whatever “fundamental purpose” can be discerned to the referendum power, such a purpose must be subordinate to the “fundamental purpose” of a constitution itself, which is that it establishes the ground rules for a system of self-government, and its words, where plain, must be taken seriously.
V. FINAL QUERY FOR THE DISSENTERS
Finally, I would address the following question to each of my dissenting colleagues: Had those who proposed and ratified our constitution truly intended to limit the referendum power as the majority interprets it, how should they, how could they, have fashioned it any more clearly than they did in article 2, § 9? That is, what words should they have used that they did not?
VI. CONCLUSION
I respectfully believe that the Court of Appeals and my dissenting colleagues, by transforming the plain meaning of the words of the constitution, would engage the judiciary in an exercise far beyond its competence and authority. While I can certainly understand the frustrations of those who disapprove of the substance of
The Court of Appeals asserts that these alternative formulations, each of which it has incorporated in its opinion, were set forth by this Court in Detroit Automobile Club v Secretary of State,
Const 1963, Preamble (emphasis added).
The dissent describes the majority as “granting the lame-duck legislative majority the prize it apparently sought . . . .” However, as the dissent well appreciates, judges are not in the business of “granting prizes” to either side of a controversy; rather, they are in the business of interpreting the language of the law and letting the chips fall where they may.
Marbury v Madison,
Powell v McCormack,
Clinton v New York City,
The dissent’s “generous” reading of the constitution is only “generous” if one starts with the point of view that a referendum should proceed on the law in controversy. If, on the other hand, one wishes to have the law take normal effect, without awaiting the next general election, then perhaps the dissent’s reading might be characterized by some as somewhat less “generous.” Although, in my judgment, the constitution should be interpreted “faithfully,” rather than “generously” or “non-generously,” it is difficult for me to understand how any interpretation can be drawn from the language of the referendum clause, no matter how “generous,” that leads to the conclusion reached by the dissent. It is unclear whether the dissent believes that the msyority has misconstrued “acts” or “making” or “appropriations” or "for” or “state” or “institutions,” or how such words have been misconstrued. In other words, exactly which interpretation of which word by the majority is most “dark” or most “abstruse,” in the dissent’s judgment?
In lieu, the dissent asserts that the “great mass of the people” would, if asked, “surely suppose” that the language of the referendum clause did not mean what the majority understands. I do not know whether the dissent is right or wrong in this proposition, for it sets forth no evidence in this regard and I am aware of no such evidence. However, at the very least, the dissent is obligated to demonstrate in regard to its assertion: (a) why it should be assumed that the “great mass of the people” did not understand that their words would be taken seriously and accorded their common understanding; and (b) why a substantial majority of the people’s representatives in the Legislature, the overwhelming number of whom had just been reelected and who had been fully apprised by opponents of
The dissent is harsh in its characterization of the Legislature’s “legerdemain” in attaching an appropriations provision to
Random House Webster’s College Dictionary (1991) at 519.
In this regard, I can recall the member of Congress who, in frustration over a judicial interpretation of a statute that, in his opinion, ignored its plain language, reintroduced the identical statute, but appended at its conclusion, “and we mean it this time!”
In light of the confusion generated, let me make clear, for what it is worth, that I, as a part of the citizenry of Michigan, would also prefer a broader referendum clause in our constitution, one less susceptible to avoidance by appropriations of the type contained in
Dissenting Opinion
(dissenting). This case presents issues involving the Legislature’s constitutional authority and the authority of the people of Michigan — expressly reserved in our 1963 Constitution — to vote on matters of great public significance. The statute in this case affects just such an issue of great public significance, involving the delicate balance between the free exercise of Second Amendment rights and the fundamental obligation of government to protect its citizens’ physical safety. Understandably, this case has energized opposing groups of citizens to a degree rarely seen in public debate.
Similarly, this case has energized this Court, prompting each justice to offer an opinion. I join in and agree with the reasoning offered in the dissenting opinions by Justice Kelly and Justice Weaver. However, I offer this opinion to address my specific concerns with the majority’s decision.
The facts, which the actual majority opinion has neglected to recite to either explain its opinion or to serve future litigants as precedent, and which appear only in the seriatim concurrences, are not in dispute. For many years, Michigan has restricted citizens’ rights to carry concealed weapons. To obtain a permit to carry a concealed weapon from a county concealed weapons board, a person has needed to demonstrate “proper reasons” to carry a concealed weapon. See MCL 28.426, repealed by
Proposed legislation to change this system was introduced in the 90th Legislature, but it had few prospects for approval. However, a legislative majority discovered new prospects after the November 2000 election, when the Legislature reconvened to conduct its biennial “lame duck” session.
Despite the timing of its passage, this profound change in Michigan law did not go unnoticed. Opposition quickly formed, but to no immediate avail. However, opponents of the new law realized the great public interest in this measure, and the likelihood that Michigan citizens on both sides of the issue would want to make their views known. Therefore, opponents began publicly to discuss invoking the referendum process that the people of Michigan reserved for themselves in Const 1963, art 2, § 9.
In that constitutional provision, the people kept the right to vote on laws enacted by the Legislature. The people of Michigan have long reserved this right, first providing for it in Michigan’s 1908 Constitution. See Const 1908, art 5, § 1. Recent examples of the people exercising this right occurred with the controversial legislation discussed in Doe v Dep’t of Social Services,
The referendum power is not unlimited, however. The framers of the constitution — and the people of Michigan when they ratified the constitution — wisely limited the referendum power so that it would not “extend to acts making appropriations for state institutions . . .,” Const 1963, art 2, § 9. For obvious reasons, the state’s fulfillment of its financial obligations cannot be subject to the delay and uncertainty inherent in the referendum process. Indeed, as this Court has stated, the limitation is designed to “enable the State to exercise its various functions free from financial embarrassment.” Detroit Automobile Club v Secretary of State,
The concealed weapons legislation that is the subject of this suit acquired, late in the enactment process, some language that provided for a $1 million grant to the Michigan State Police. See MCL 28.425w. Intervening defendant People Who Care About Kids seeks to establish that the monetary provision of
In answering this argument, the majority focuses narrowly on the superficially straightforward question whether
Despite the legalistic temptation to focus on the seemingly literal language of a single phrase in a single sentence, the pertinent sentence here is but one sentence in our state constitution. Constitutional analysis must not be overly literal; it is an undertaking that must be approached in an entirely different light. Long ago, Michigan’s great constitutional scholar Justice COOLEY set forth for his many successors on this Court the primary rule of constitutional interpretation, the rule of “common understanding,” described in his treatise Constitutional Limitations, p 81, to which this Court has turned so frequently. This Court gave a fully developed explanation of the rule in Traverse City Sch Dist v Attorney General,
This case requires the construction of a constitution, where the technical rules of statutory construction do not apply. McCulloch v Maryland, 17 US (4 Wheat) 316, 407;4 L Ed 579 (1819).
The primary rule is the rule of “common understanding” described by Justice Cooley:
“A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley’s Const Lim 81.) (Emphasis added.)”
A second rule is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered. On this point this Court has said the following:
“In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished. Kearney v Bd of State Auditors [189 Mich 666 , 673;155 NW 510 (1915)].”
A third rule is that wherever possible an interpretation that does not create constitutional invalidity is preferred to one that does. Chief Justice Marshall pursued this thought fully in Marbury v Madison [5 US (1 Cranch) 137 , 175;2 L Ed 60 (1803)], which we quote in part:
“If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction . . . .”
These are the principles we must apply when interpreting our state constitution.
When considered as a whole, the constitution provides various explanations of, and restrictions on, the legislative process. A broad examination of the provisions of article 4 evidences that the framers and the people placed an extremely high value on the integrity and accountability of this process. There, the constitution prohibits the Legislature from playing deceptive games in the course of enacting legislation,
In light of these provisions and the overall approach to legislation taken by the constitution’s framers and the people who ratified it, I am convinced that the Court of Appeals correctly decided this case. I am confident that the constitutional right of referendum, in this narrow context, should not be taken away by so transparent an artifice. Justice Cooley’s “great mass of the people” would, if asked, surely suppose that “acts making appropriations
Additionally, the third principle stated in Traverse City Sch Dist provides further support for this conclusion. That principle is that when possible, we must prefer an interpretation that does not create a constitutional invalidity over an interpretation that does.
The referendum power, of course, is the people’s reserved check on the Legislature. In Kuhn v Dep’t of Treasury,
In its short opinion, the majority cites “an unbroken line of decisions of this Court interpreting [the referendum power].” Ante at 366. The line is unbroken because it reflects this Court’s dual commitments
Also, I find it as inevitable as night following day that the concurrences would characterize the lengthy, thoughtful majority opinion as “admirably concise,” ante at 368 (Young, J., concurring), and as setting “forth its analysis simply and straightforwardly” and doing so because “the constitutional issue before us is simple and straightforward.” Ante at 391 (Makkman, J., concurring). Yet, as self-evident as the majority believes its result to be, the orchestrated, explanatory concurrences appeared following this dissent. In my view, these serial apologias do nothing to alter the majority’s disembowelment of the public’s constitutionally guaranteed right to referendum.
So, despite the constitutional structure and the people’s desire for a check on the Legislature, the majority concludes that the Legislature can decide when the people will have that check. I reiterate that reasonable minds may differ about the underlying substance of this case. Some say public safety and ordinary social intercourse will be disturbed by a radical switch in state concealed weapons policy, while others say that public safety will be enhanced when responsible citizens can carry weapons. I say, and do not believe reasonable minds can dispute, that the constitution says that the people must be allowed to vote.
The many concerned citizens on both sides defy easy description. To oversimplify, the background dispute over the place of weapons in our society pits firearm advocates and persons interested in hunting against a coalition of law enforcement, religious, and educational interests.
In his concurrence, Justice Young characterizes my observations as a “generous” statement of my own “extensive personal views” of the “political issue” underlying this case. Ante at 368-369 (Young, J., concurring). While he is certainly correct that this “political issue” is not before the Court, his conclusion that I have somehow aired my views of the matter is baffling. This dissent merely states that the underlying matter, which led to the referendum drive, is significant and that thoughtful people may disagree about it. If that is a “generous” statement of my “extensive personal views,” then apparently Justice Young is equally copious about the matter, see id,., and one can only wonder what Justice Young would conclude about Justice Markman’s generosity. See ante at 395 (Markman, J., concurring) (“For what it is worth, I am in complete agreement that
Because of its timing, the lame-duck session is understood to be a period of diminished public accountability. See, e.g., Farber & Frickey, Public choice revisited, 96 Mich L R 1715, 1729 (1998).
Various Michigan legislators would agree with intervening defendant. For example, protesting the new law, Senator Byrum stated that “we know that the only reason there was an appropriation . . . was to block the referendum, block the people’s right to disagree with the action of their Legislature,” 2000 Journal of the Senate 2125, and Senator Gast said that the appropriation “was put in to make it bulletproof and ballot-proof, and I think it’s kind of deceptive.” White, Lawyers, guns and money: weapons petitions go to court, Grand Rapids Press, June 10, 2001 at A18. Similarly, Representative Wojno stated that “the reason that the proponents of this legislation added this appropriation ... is inappropriate and insidious. They apparently believe that in doing so they can circumvent Article II, Section 9 of the Michigan Constitution, and silence the voices of the majority of the people of this State,” while Representative Jellema added that the eleventh-hour addition of the appropriation “further diminishes the right of voters to express their views on this very important issue.” 2000 Journal of the House 2682, 2683.
Const 1963, art 4, §§ 24 and 25, provides this protection, stating:
No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.
No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.
Const 1963, art 4, § 26, provides this assurance, stating:
No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. On the final passage of bills, the votes and names of members voting thereon shall be entered in the journal.
This is Const 1963, art 4, § 31, which provides:
The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill for items not in the budget except bills supplementing appropriations for the current fiscal year’s operation. Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill. One of the general appropriation bills as passed by the legislature shall contain an itemized statement of estimated revenue by major source in each operating fund for the ensuing fiscal period, the total of which shall not be less than the total of all appropriations made from each fund in the general appropriation bills as passed.
Article 4, concerning the legislative branch, notes the people’s power:
Any bill passed by the legislature and approved by the governor, except a bill appropriating money, may provide that it will not become law unless approved by a majority of the electors voting thereon. [Const 1963, art 4, § 34.]
The Court cited Marbury v Madison in support of this principle. See Traverse City Sch Dist, supra at 406. Although Marbury is sometimes cited for the proposition that the construction of a statute that creates a constitutional invalidity is disfavored, see, e.g., Council of Organizations & Others for Ed About Parochiaid v Governor,
If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning. [Id. at 175.]
The “clause” referenced, though, was a clause of the United States Constitution, as illustrated by the United States Supreme Court’s language preceding the quoted passage:
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is admissible, unless the words require it. [Id. at 174]
Marbury then discussed how US Const, art III, § 2, ¶ 2 provided for the Supreme Court’s jurisdiction, and how no construction of any clause in that section that rendered any other clause inoperative would be favored. See Marbury, supra at 175-180. Traverse City Sell Dist also dealt with giving meaning to the language of the constitution, not saving a statute from constitutional invalidity. See Traverse City Sch Dist, supra at 412-413. Likewise, in this case we must give meaning to, and not invalidate, the people’s reserved referendum power.
Dissenting Opinion
I respectfully dissent from the majority’s holding that 2000 Public Act 381 is exempt from the power of referendum of the Michigan Constitution.
Art 2, § 9 of the 1963 Michigan Constitution states that “[t]he power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds . . . .” This language was taken almost verbatim
The legislative power of the state of Michigan is vested in a senate and house of representatives; but the people reserve to themselves the power to propose legislative measures, resolutions and laws; to enact or reject the same at the polls independently of the Legislature; and to approve or reject at the polls any act passed by the Legislature, except acts making appropriations for state institutions and to meet deficiencies in state funds.” [Emphasis added.]
The sole interpretation of the “acts making appropriations for state institutions” language of art 5, § 1 of the 1908 Constitution is found in the 1925 Michigan Supreme Court case, Detroit Automobile Club v Secretary of State,
In Detroit Automobile Club, plaintiffs sought a writ of mandamus to compel the
Detroit Automobile Club first addressed whether the Highway Department was a state institution within the meaning of art 5, § 1. Ultimately, the Court held that the Highway Department was a state institution within the meaning of the constitution. Detroit Automobile Club, supra at 626. In order to reach this holding, the Court ruled:
The question is not solely whether the highway department may be correctly termed a state institution, but rather whether, in view of the functions which it exercises, it comes within the meaning of that term as used in the Constitution. It is not difficult to determine what the framers of the Constitution had in mind. It is clear that, by permitting immediate effect to be given to appropriation acts for state institutions, it was their purpose to enable the state to exercise its various functions free from financial embarrassment. The highway department exercises state functions. It was created by the Legislature for that purpose. It must have money to carry on its activities. Without the money appropriated by this act for its immediate use, it would cease to function. The constitutional purpose was to prevent such a contingency. [Id., pp 625-626 (emphasis added).]
The Court viewed the purpose of the Legislature’s power to give an act of appropriation immediate effect as one necessary to permit the “state to exercise its various functions free from financial embarrassment” and to allow for state institutions to carry on state functions. Id. To that Court, this purpose of the framers was “not difficult to determine . . . .” Id. Detroit Automobile Club recognized the necessity of immediacy under these circumstances and it is under these circumstances that Detroit Automobile Club determined that an act was not subject to the people’s referendum power.
This Court reaffirmed its articulation of the purpose of the constitutional provision in Moreton v Secretary of State,
The delegates to the 1961 Constitutional Convention axe presumed to have known and to have understood the meaning ascribed in these earlier decisions to the language of the 1908 Constitution. This language was retained by them in the 1963 Constitution without modification in response to the earlier decisions. Under well-established principles, it is not open to us to place a new construction on this language. [Bds of Co Rd Comm’rs, supra at 676.]
Because the reasoning in Detroit Automobile Club was the sole and uncontradicted interpretation of “acts making appropriations for state institutions,” I believe that its reasoning is the best evidence of the framers understanding of this language and perhaps the explanation why there is so little discussion of its meaning in the record of the convention.
Applying Detroit Automobile Club to the facts of this case, the money appropriated in
Further, I believe that the majority fails to recognize the importance of the referendum, and this Court’s responsibility to protect the people’s power of the referendum,
There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible as against conceivable if not likely evasion or parry by the legislature. The rule is, in substance, that no court should construe a clause or section of a constitution as to impede or defeat its generally understood ends when another construction thereof, equally concordant with the words and sense of that clause or section, will guard and enforce these ends.
Given the prior, uncontradicted, and equally concordant construction in Detroit Automobile Club, I believe we are precluded in this case from applying the constitutional provision in a way that would take the power of the referendum away from the people and give it to the Legislature.
Under the majority’s opinion, if the Legislature were to drop the six zeros on the appropriation in
Finally, it is essential to recognize that the issue before us is one of constitutional interpretation. My opinion on the issue of constitutional law in this case does not address and should not be read to reflect one way or the other a position on the merits of the concealed weapons act passed by the Legislature.
I would affirm the result of the Court of Appeals.
In 1974 this Court held that “The referendary provision and exceptions of the 1908 Constitution were retained in the 1963 Constitution as art 2, § 9 without change in the pertinent language.” Bds of Co Rd Comm’rs v Bd of State Canvassers,
Art 5, § 21 provided in pertinent part:
No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a % vote of the members elected to each house.
The 1939 decision in Todd v Hull,
Notably, in Advisory Opinion re Constitutionality of
Thus, I agree with Justice Kelly that the gas tax cases do not support the majority conclusion, but, rather, are consistent with my position and that of my dissenting colleagues. See post at 424-425.
Such considerations are relevant even though this Court has recently rejected the “absurd result” mode of statutory construction. People v McIntire,
Dissenting Opinion
(dissenting). I agree with my two dissenting colleagues that
I. THE CONSTITUTIONAL MEANING OF “ACTS MAKING APPROPRIATIONS FOR STATE INSTITUTIONS”
In Const 1963, art 2, § 9, the people reserved the power of referendum. They limited it, saying it “does not extend to acts making appropriations for state institutions . . . .” The question in the present case is whether a referendum of Act 381 is possible, because the act makes “appropriations for state institutions.”
When construing provisions of our constitution, this Court uses the rale of “common
We start by examining the provision’s plain meaning as understood by its ratifiers at the time of its adoption. See American Axle & Mfg, Inc, supra at 362. Article 2, § 9 provides:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
In deciding this case, the majority makes much of the fact that Act 381 allocates $1,000,000 “to the department of state police . . . .” Ante at 366. It concludes that the $1,000,000 is an “appropriation” and that the Department of State Police is a “state institution.” See ante at 366. Thus, it reasons, the power of referendum does not extend to Act 381. I disagree.
The majority’s error, in my view, arises in part because it fails to examine carefully the meaning of the phrase “acts making appropriations for state institutions.” In particular, it ignores the use of the word “for” in that phrase. In essence, it interprets art 2, § 9 to exempt from referendum any act that makes an appropriation “to” a state institution. This interpretation not only lacks support from the plain language of the article, it fails to appreciate the critical difference between the meanings of “to”
I would interpret art 2, § 9 to give effect to the words contained in it. The provision indicates that an act making an appropriation is exempt from referendum only if the appropriation is made “for” state institutions. The dictionary definition of “for,” in pertinent part, is “suiting the purposes or needs of,” “with the object or purpose of.”
I would adopt this as the most reasonable interpretation of art 2, § 9.
My interpretation is consistent with this Court’s mandate that the right of referendum should be liberally construed. See, e.g., Kuhn v Dep’t of Treasury,
To hold that an act may not be referred because incidentally it provides the funds to accomplish the ends it seeks would have the effect of practically nullifying the referendum provision of the Constitution, because many of the measures passed carry appropriations of this character, and it would be an easy matter to include such a provision in others and bring about the same result.
Ü. THE MAJORITY’S UNPRECEDENTED INTERPRETATION OF ART 2, § 9: A DEPARTURE FROM DECISIONS IN THE “GAS TAX” CASES
The majority asserts that its conclusion, that Act 381 makes appropriations for
To be sure, the gas tax cases are “unbroken” in the sense that all constitute proclamations from this Court that the challenged gas tax was nonreferable, meaning that it could not be subject to a referendum vote. Notwithstanding, they do not support the majority’s conclusion.
In the earliest gas tax case, this Court stated that the appropriation exception in our constitution was intended to allow the state to exercise its various core functions free from financial embarrassment. See Detroit Automobile Club v Secretary of State,
It is clear that, by permitting immediate effect to be given to appropriation acts for state institutions, it was their purpose to enable the state to exercise its various functions free from financial embarrassment. The highway department exercises state functions. It was created by the Legislature for that purpose. It must have money to carry on its activities. Without the money appropriated by this act for its immediate use, it would cease to function. The constitutional purpose was to prevent such a contingency. [Id. at 625-626 (emphasis added).][10 ]
This interpretation was reiterated in the second gas tax case. See Moreton v Secretary of State,
The majority’s interpretation of art 2, § 9, impliedly rejects this Court’s “core function” interpretation of the phrase in our constitution exempting from referendum “acts making appropriations for state
Given that Detroit Automobile Club represents the only substantive interpretation by this Court of “acts making appropriations for state institutions,” I agree with Justice Weaver that we should follow it. Doing so further supports the conclusion I have articulated: art 2, § 9 was intended to exempt from referendum only those acts containing grants that ensure the viability of state agency recipients, or as the Court of Appeals said, that support the agencies’ “core functions.”
This interpretation renders the referendum exception consistent with the fundamental purpose of the general power of referendum. If the appropriation provision in an act is essential to a core purpose of a state institution, the act may not be referred. The risk is too great that the delay caused by a referendum vote would embarrass government and be detrimental to the public. On the other hand, where the appropriation provision is for a lesser function, not essential to the purpose of the department, the embarrassment problem does not arise. In the latter case, the people’s right to decide policy issues for themselves, which is the core purpose for which the people reserved the referendum power, should survive.
m. COURT CONSIDERATION OF THE LEGISLATURE’S motives
In one of the three concurring opinions joining the majority, my colleague “emphasize[s]” that the Legislature’s subjective motivation for making a $1,000,000 appropriation in Act 381 “is irrelevant.” Chief Justice Corrigan’s opinion at 367. In my view, this is an unfortunate exaggeration.
I acknowledge that, as a general rule, courts do not inquire into the motives of the Legislature in passing legislation. See Young v Ann Arbor,
IV. REFERENDUM v INITIATIVE
I find objectionable, also, the palliation offered by two of my colleagues in the majority that the intervening defendant retains the direct remedy of the initiative process. Chief Justice Corrigan’s opinion at 366-367; Justice Young’s opinion at 389. Although I agree that the initiative process is available here, I find their observation misplaced.
First, any alternative remedy that exists is irrelevant to the issue before us: whether Act 381 constitutes an act “making appropriations for state institutions” within the meaning of art 2, § 9. Moreover, there are real and heightened practical difficulties associated with pursuing an initiative process, as compared with referendum. Not only does the initiative process require far more petition signatures than the referendum process, it also involves much
Also, this case presents the exact situation for which the referendum power was created. The power exists to permit citizens to suspend or annul laws passed by the Legislature until the people can vote on the merits of the law. See Alabama Freight v Hunt, 29 Ariz 419, 424;
The power of initiative, on the other hand, is intended to protect against a Legislature that fails to act.
V. CONCLUSION
For these reasons, and for the reasons given by my two dissenting colleagues, I believe that Act 381 does not constitute “acts making appropriations for state institutions” within the meaning of art 2, § 9. Accordingly, I would affirm the decision of the Court of Appeals.
“To” is defined, inter alia, as “used for expressing destination or appointed end.” Random House Webster’s College Dictionary, p 1401 (1995).
Id. at 519. My use of the word “for” is not as Justice Markman asserts, “transmuted beyond recognition.” The meaning is straight out of the dictionary.
Id. at 1096.
In his concurring opinion, Justice Markman makes a “final query for the dissenters”: How could those who ratified the constitution have fashioned the words of art 2, § 9 more clearly? My response is that no wording change is needed. Art 2, § 9 means what it says. However, it would have to be reworded to accurately convey the meaning that Justice Markman and the majority give it. It would have to be changed to read: The power of referendum “does not extend to acts making appropriations to state institutions . . . .”
Act 381 directs that the $1,000,000 be used, inter alia, to distribute trigger locks, provide permit application kits, take photographs of applicants, conduct a public safety campaign regarding Act 381’s requirements, and conduct fingerprint analysis and comparison reports required under the Act.
Although Justice Young opines that the judiciary is ill-equipped to resolve what a state institution’s “core function” is, see ante at 390,1 have every confidence in the judiciary’s capabilities in this regard.
Justice Markman creates a hypothetical example whereby the Legislature enacts a law that assigns to the Department of State Police responsibilities belonging to the Department of Corrections, and then allocates money to that end. See Justice Markman’s opinion at 401-402. I find his hypothetical example inapplicable. Act 381 does not transfer functions belonging to any other agency.
39 Ariz 203, 215-216;
Detroit Automobile Club v Secretary of State,
In Detroit Automobile Club, the issue was whether
In two of the three later gas tax cases, this Court merely quoted or cited, then followed, our interpretation in Detroit Automobile Club of the appropriation exception to the power of referendum. See Michigan Good Rds Federation, supra at 356-357; Co Rd Ass’n, supra at 112-113. In the other gas tax case, this Court merely cited our holding in Detroit Automobile Club. See Co Rd Comm’rs, supra at 672.
In Todd v Hull,
Two of the concurring opinions do so, as well. See Justice Markman’s opinion at 391-392; Justice Young’s opinion at 376-388.
The instant case brings to mind the ancient quotation that “[t]he voice is Jacob’s voice but the hands are the hands of Esau.” Todd, supra at 543 (opinion of Bushnell, J.).
See Comment, Interpretation of initiatives by reference to similar statutes: Canons of construction do not adequately measure voter intent, 34 Santa Clara L R 945, 973 (1994), “legislative inaction is the reason the initiative process was established.”
I note, also, that the issue in the instant case is one of constitutional interpretation. Accordingly, my opinion here addresses an issue of constitutional law. It does not address and ought not be construed to address the merits of Act 381.