Frey v. Director, Department of Social Services

Cynar, J.

(dissenting). I am compelled to respectfully dissent. I do not agree with the majority’s position that article 4, §27 of the Michigan Constitution applies to the initiative process. Article 2 of the constitution addresses the issues of electors, elections, and the initiative and referendum processes. On the other hand, article 4 establishes and defines the powers and duties of the legislative branch of government.

Looking at the plain and common sense meaning of the words used in article 2, § 9 and article 4, § 27, it is clear that these constitutional provisions are separate and distinct. Article 2, § 9 reserves to the people the power to propose laws and to enact and reject laws through initiative, and the power to approve or reject laws enacted by the Legislature through referendum. The power of initiative extends only to laws which the Legislature may enact under this constitution. Once a law is proposed by initiative petition, it shall either be enacted or rejected by the Legislature without change or amendment within forty session days from the time the petition is received. Const 1963, art 2, § 9.

Article 2, § 9 is self-executing in that it does not depend upon statutory implementation, even though the last provision of the article states, *604"[t]he legislature shall implement the provisions of this section.” Thompson v Secretary of State, 192 Mich 512, 520; 159 NW 65 (1916); Ferency v Secretary of State, 409 Mich 569, 591, n 9; 297 NW2d 544 (1980).

Article 4, §27 is contained in that part of the constitution dealing with the legislative bill process. The language of article 4, § 22 speaks only to bills and not initiative petitions. The term "pass” is only used in article 4 and only when describing the bill process. Article 2, §9 contains the word "enacted” while article 4, § 27 uses the term "passed.” Because different language is employed in these articles, this is an indication that article 4, § 27 governs legislation created through the bill process, not the initiative process.

In addition, OAG 1963-1964, No. 4313, p 365 (April 9, 1964), supports the proposition that the petition takes immediate effect and that article 2 and article 4 are separate and independent of each other. In that case, the Attorney General discussed the effective date of a law proposed by initiative petition and enacted by the Legislature making tenure of teachers mandatory in Michigan. The petition did not specify that it would become immediately effective upon enactment by the Legislature. The Attorney General concluded:

The aforesaid initiative petition did not specify by its provisions that should the legislature enact the initiative petition into law, the law would become immediately effective.
Reading the provisions of Article II, Sec. 9 and Article IV, Sec. 27 together, in light of the form of initiative petition presented to the legislature . . . without specifying immediate effect in such petition should the legislature enact it, the conclusion must follow that the initiative petition which has *605been enacted by the Michigan legislature . . . shall not take effect until the expiration of 90 days after the end of the session at which it was passed. [Emphasis added. Id., 365, 367-368.]

The majority reads this language as indicating a conclusion that article 4, § 27 applies to initiatives. I read the above language differently. The Attorney General merely concluded that article 4, § 27 should be applied to initiative petitions where they are silent as to their effective date. The Attorney General did not conclude that article 4, § 27 applies to initiatives in all situations as the majority reasons. The Attorney General "borrowed” the provisions of article 4, § 27 because the teacher tenure initiative did not provide for effective date language. In this case, it is unnecessary to refer to article 4, § 27 since the initiative did specify by its own terms that it shall have immediate effect.

The majority relies on Thompson v Bd of Supervisors of Alameda Co, 180 Cal App 3d 555; 225 Cal Rptr 640 (1986), for the proposition that the effective date language is merely "procedural,” thereby not a part of the main body of the initiative. Thompson is distinguishable for two reasons. First, the effective date change was required in order for the ordinance to comply with § 3751 of the California election code. Secondly, it can equally be argued that effective date language in a proposed law is substantive, no matter where the language appears in an initiative.

In this case, the immediate effect language was a part of the initiative as proposed by the people. The Legislature chose to pass the initiative as written. The Legislature could easily have rejected the entire petition including the immediate effect language.

Moreover, principles of constitutional construe*606tion call for this result. In Walker v Wolverine Fabricating & Mfg Co, 425 Mich 586, 596; 391 NW2d 296 (1986), our Supreme Court reaffirmed the long-standing rule of constitutional construction:

The paramount rule of constitutional construction is that the constitution should be given that interpretation which the great mass of people would have understood when they ratified it. Justice Cooley described this rule in terms which have been cited many times since:
"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. Cooley’s Const Lim 81.” [Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971).]
The most obvious way to divine what meaning "the great mass of the people themselves would give” any word of phrase would be the common meaning of the language used.

It is contended that the language of article 2, § 9 itself clearly indicates that article 4, § 27 applies to laws proposed by initiative and enacted by the Legislature. To the contrary, it takes a strained reading to reach such a result. The majority in part draws on a colloquy printed in 2 Official Record, Constitutional Convention 1961, p 2395, wherein the discussion of several delegates supposedly lends support to the position that the act passed by the Legislature following a submission of the proposed initiative referendum was not intended to go in effect until ninety days after adjournment of the Legislature’s final session. If this was intended, it is difficult to understand why a few written words in article 2, were not included to clearly express such intent. Further article 2 *607expressly provides that the right of referendum must be invoked in a prescribed manner within ninety days following adjournment of the legislative session. It does not seem reasonable to prescribe when the right of referendum must be invoked, but avoid expressing in article 2 the effective date of a statute enacted pursuant to an initiative unless such omission was so intended.

Review of the Constitutional Convention record reflects much study and labor before the passage of the 1963 Constitution. The words in article 2 were carefully selected and structured for their intended meaning. Some of the following reasons were submitted in support of Committee Proposal 118:

Provision is also made to place laws passed by vote of the electors on a higher plane than those passed by the legislature. The people’s will should not be changed by veto or repeal unless it is provided in the act. Only the people themselves have the right to change or repeal what they have enacted.
Removed from constitutional status are the provisions on content and time of filing petitions, canvassing of names on petitions, type sizes, and right of the legislature to prescribe penalties. Also removed is the date of effectiveness of legislative acts which is covered in article v, section 21.
All of these matters are left to the legislature in the last sentence. However, the language of the last sentence also makes it clear that the section is self executing and the legislature cannot thwart popular will by refusing to act. [2 Official Record, Constitutional Convention 1961, p 2392.]

Pursuant to article 2, § 9, some 457,272 people of this state signed the initiative petitions. The number of required signatures for initiative under article 2, § 9, was 191,000. The Board of State *608Canvassers certified 395,751 valid signatures on the petitions. This was more than double the number of signatures required. The proposed initiative was approved as submitted by a majority of both houses of the Legislature. The enacted law can be stayed and subjected to referendum by five percent of the voters.

Constitutional and statutory initiative and referendum provisions are to be liberally construed to effectuate their purpose, to facilitate rather than hamper the exercise by the people of those reserved rights. Kuhn v Dep’t of Treasury, 384 Mich 378, 385; 183 NW2d 796 (1971); Newsome v Board of State Canvassers, 69 Mich App 725, 729; 245 NW2d 374 (1976), lv den 397 Mich 833 (1976). The constitutional privilege of the people to propose and to have legislation enacted should be respected by the Court unless a clearly restrictive provision of the constitution is shown to be applicable.

The majority’s construction of article 2 would restrict the people’s right of initiative. It is my conclusion that the law proposed by the people and enacted by the Legislature herein is not subject to article 4, §27. The trial court’s judgment should be affirmed.