Frey v. Department of Management & Budget

Cavanagh, J.

(dissenting). This case has attracted much public attention because of the controversial subject matter of this particular initiative petition. As the majority emphasizes, however, this Court is not reviewing the wisdom, of the substance of this initiative. We are simply determining how this and future initiative petitions attain immediate effect.

The issue is whether Const 1963, art 4, §27 governs initiative petitions which state that "[t]his *341act shall take immediate effect.” Art 4, § 27 provides:

No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.

I dissent from the majority’s conclusion that art 4, § 27 applies to an initiative petition which contains immediate effect language. Rather, I agree with the interpretation given to that provision and to Const 1963, art 2, § 9 in the opinion of the circuit court and in the Court of Appeals dissent.

There is no dispute that an initiative petition, once enacted, is "on equal footing” with acts that originated in the Legislature. Advisory Opinion on Constitutionality of 1982 PA 47, 418 Mich 49, 66; 340 NW2d 817 (1983). The Court of Appeals misapplied this principle, however, by concluding:

Either article 4, § 27 applies to all initiatives or it applies to none. It cannot apply only to initiatives which do not specify an effective date, since that would not provide stability to initiatives and assure that laws proposed by initiatives are on an equal footing with acts of the Legislature not proposed by the people. [162 Mich App 586, 600; 413 NW2d 54 (1987).]

The requirement that a law originating through an initiated petition not have greater legal effect than nonpublic-initiated laws does not mean that the former cannot evolve through a different process. This is in fact what happens.

Art 2, § 9 begins with the following language:

*342The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative ....

By voting to adopt the Michigan Constitution with this provision included, the people of Michigan chose to reserve for themselves the right to enact and reject laws, rather than leave that right exclusively with the Legislature. In Woodland v Michigan Citizens Lobby, 423 Mich 188; 378 NW2d 337 (1985), both the majority and the dissent recognized the importance of the power reserved in the initiative provision. It "serves as an express limitation on the authority of the Legislature.” Id. at 214. "The importance of the power of initiative in Michigan’s constitutional scheme cannot be overemphasized. In a democracy, governmental power ultimately rests with the people, and art 2, §9, reflects this principle.” Id. at 243 (opinion of Williams, C.J.).

Through art 2, § 9, the public has also indicated that when asserting its reserved right to enact and reject laws, it will follow a process different than the Legislature’s. There was reference to this point during the Senate’s consideration of the petition:

The people have gone to the streets with petitions because of our inability — this body’s collective inability to resolve this problem.
The Senator from Ann Arbor said that it’s an unusual procedure because we’re excluding the Governor. That, Senator, is what the constitution gives the people the right to do. Article 2, of the Constitution is separate from Article 9, which is the normal process of passing laws that we deal with everyday. [1987 Journal of the Senate 1771-1776 (No. 59, June 17, 1987).]

One of the differences in the initiative process is that the public does not need to seek the Gover*343nor’s approval. Art 2, §9 provides that, unlike other legislation:

No law initiated or adopted by the people shall be subject to the veto power of the governor.

Also, art 2, § 9 reveals another unique quality of the initiative:

Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. [Emphasis added.]

The above language indicates that the public meant to reserve for itself the power to submit a petition to the Legislature in the exact form and language the public desired. In this case, the immediate effect language was part of the petition submitted for the Legislature’s approval, and the petition’s supporters risked having it rejected by adding that condition. By the same token, if the petition passed, the petitioners’ intent to give it immediate effect also should be honored.1

The prohibition against legislative change or amendment is consistent with the unique function of the initiative. The initiative is the public’s remedy when the Legislature refuses to act regarding an issue of public concern:

[T]he initiative process is intended as a last resort for the people when the Legislature fails to act on issues which . . . inflame the citizenry on a grass-roots level .... [Woodland, supra at 218.]

Subjecting an initiative petition with immediate *344effect language to art 4, § 27 could frustrate the will of the petitioners and the initiative process.

Even the Legislature recognized the significance of the immediate effect language. After the petition passed in the House and Senate, each house, by majority vote, declined to move for immediate effect of the act under art 4, § 27, because to do so would have been "a nullity due to the fact that the initiatory petition call[ed] for immediate effect.” 1987 Journal of the Senate 1771 (No. 59, June 17, 1987). See also 1987 Journal of the House 1964 (No. 63, June 23,1987).

The Legislature’s decision not to vote on the immediate effect language not only supports the appellants’ position, it merits at least some judicial deference. The Legislature has indicated how it wants to interpret a constitutional provision (art 4, § 27) within the section of the constitution entitled "Legislative Branch.” Both houses, when confronted with a choice whether to vote on the immediate effectiveness of the petition, declined to do so because the language in the petition already provided for this. The judicial branch cannot lightly dismiss another branch’s determination of law reached through formal vote.

The Court of Appeals further erred by finding it inconsistent to apply art 4, §27 to initiatives without immediate effect language, while not applying the provision to those with such language. In OAG, 1963-1964, No 4313, p 365 (April 9, 1964), Attorney General Frank Kelley concluded that an initiative petition without immediate effect language was governed by art 4, § 27. There is nothing inconsistent with that opinion and the present dissent. When the people indicate that the initiative is to take immediate effect, then the entire petition, which includes that language, either is *345passed or rejected under art 2, § 9. That provision clearly sets forth the procedure for doing so. Likewise, when such language is absent from an initiative petition, the entire petition still is either passed or rejected under art 2, §9, and then, if enacted, is subject to art 4, § 27, like other acts. In other words, whatever is included within the language of the petition is subject exclusively to art 2, § 9, which does not require that the immediate effect language be voted on.

The Court of Appeals reliance on a discussion between two 1961 Constitutional Convention delegates was also unpersuasive. The Court quoted one delegate who indicated the ninety-day wait in art 4, § 27 was intended to govern initiatives as well as acts originating in the Legislature. The Court of Appeals concluded that "[t]his colloquy indicates clearly that the delegates intended the language currently found in Const 1963, art 4, § 27 to apply to initiatives.” (Emphasis added.) 162 Mich App 595. The colloquy indicated only one delegate’s intent, and on a point not directly at issue here. Further, the constitutional convention debates should not be relied on for guidance as if they were analogous to a statute’s legislative history. When a statute is scrutinized, the intent of the legislators is relevant because they are the people who voted to enact the law. The people who adopted the 1963 Michigan Constitution, however, were not just the delegates attending the 1961 convention. In other words, "convention delegate intent” is not analogous to legislative intent.

The "Address to the People,” which was circulated after the convention, reveals what the voting public relied on in deciding whether to adopt the 1963 Constitution. There were annotations in the address which followed the text of each constitu*346tional provision.2 Not surprisingly, the annotations following art 2, § 9 do not discuss the method by which an initiative petition can take immediate effect. Similarly, the annotation of art 4, § 27 makes no reference to the initiatives. Thus, there is nothing in the "Address to the People” which indicates that the voters intended, or knew, that art 4, § 27 would govern those initiatives in which the public has chosen to include immediate effect language.

1 would reverse the decision of the Court of Appeals and reinstate the circuit court’s order granting summary disposition to defendants.

Griffin, J., took no part in the decision of this case._

To hold to the contrary would mean that the Legislature could also ignore a specific effective date and substitute any date it chose.

Each of these annotations are reprinted at the end of each constitutional provision in both Michigan Compiled Laws Annotated and Michigan Statutes Annotated, as a "Convention Comment.”