Goldstone v. Bloomfield Township Public Library

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 26, 2007

GEORGE H. GOLDSTONE,

Plaintiff-Appellant,

v No. 130150

BLOOMFIELD TOWNSHIP PUBLIC
LIBRARY,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal to consider whether Const 1963, art 8, § 9,

which states that public libraries “shall be available to all residents of the state,”

requires each individual public library facility in Michigan to offer nonresident

book-borrowing privileges.1 The lower courts answered this question in the

negative, and we agree, although for different reasons. Therefore, we affirm.

I. FACTS AND PROCEDURAL HISTORY
 Plaintiff is a resident of the city of Bloomfield Hills. The city does not

have its own public library, but from 1964 to November 12, 2003, had entered into

a “library service agreement” with defendant Bloomfield Township Public Library

that, for a fee, permitted city residents full access to the library and to other area

libraries that were also signatories to the agreement. When the agreement expired

in 2003, the city of Bloomfield Hills and the township library did not renew it. As

a result, city residents, including plaintiff, were allowed by the township only to

visit the library and to use its materials on site. They were not allowed to borrow

library materials or to fully access online databases and other programs, services,

and activities that were regularly available to township residents.

Plaintiff believed that, notwithstanding the lack of a service agreement

between the township library and the city, the Michigan Constitution guaranteed

availability to him and to all other state residents. Thus, he felt he had the right to

full use of the library and its collections, including borrowing privileges. Plaintiff

sought a nonresident library card and offered to pay a borrowing fee. Pursuant to

its local policies, the township library refused and asserted that the access it

allowed was sufficient to meet the requirements of Const 1963, art 8, § 9.

Plaintiff brought an action seeking a declaratory judgment against the

township library, demanding borrowing rights equivalent to those of a township

(…continued)
1
The term “nonresident” is used throughout this opinion to refer to a
person who is a resident of the state of Michigan, but not a resident of the
(continued…)

2

resident on the basis that such rights are assured by Const 1963, art 8, § 9.

Anything less, plaintiff argued, such as that which was offered by the township--

library access with no borrowing privileges-- violated the constitutional guarantee.

The township library argued to the contrary that, under Const 1963, art 8, § 9,

there was no constitutional right to the unlimited access plaintiff sought, and that it

could constitutionally enforce its policy.

The trial court granted summary disposition to the township library, ruling

that, by allowing onsite use, the library satisfied the constitutional requirement that

libraries be “available” to state residents. The Court of Appeals affirmed, agreeing

that the availability requirement of Const 1963, art 8, § 9 created no constitutional

mandate that libraries provide nonresident borrowing privileges or make all

resident services accessible to nonresidents. 268 Mich App 642, 652; 708 NW2d

740 (2005). After hearing oral argument on plaintiff’s application for leave to

appeal, this Court granted leave to appeal. 477 Mich 919 (2006).

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision granting or denying a

motion for summary disposition. City of Taylor v Detroit Edison Co, 475 Mich

109, 115; 715 NW2d 28 (2006). Issues of constitutional construction are

questions of law that are also reviewed de novo. Id. When interpreting

constitutional provisions, our primary objective “‘is to realize the intent of the

(…continued)

municipality having the library from which that person desires to borrow books.

3

people by whom and for whom the constitution was ratified.’” Studier v Michigan

Pub School Employees Retirement Bd, 472 Mich 642, 652; 698 NW2d 350 (2005),

quoting Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). That

is, we seek the “‘common understanding’” of the people at the time the

constitution was ratified. Studier, supra at 652, quoting 1 Cooley, Constitutional

Limitations (6th ed) at 81 (citations and internal quotation marks omitted). This

involves applying the plain meaning of each term used at the time of ratification,

unless technical, legal terms are used. Studier, supra at 652.

III. ANALYSIS

A. CONST 1963, ART 8, § 9

Const 1963, art 8, § 9 states:

The legislature shall provide by law for the establishment and
support of public libraries which shall be available to all residents of
the state under regulations adopted by the governing bodies thereof.

Defendant argues that a public library is “available” for purposes of our

constitution when it is subject to entry and its resources subject to use on site. We

disagree. Instead, we agree with plaintiff that a public library is only “available”

when a person enjoys reasonable borrowing privileges. In particular, we agree

with plaintiff that, in construing our constitution, “available” must be assessed

specifically in conjunction with “public libraries.” Although this may not

necessarily be true with regard to research libraries or private libraries, we believe

4

that the “common understanding” is that “public libraries” are only “available” to

a person if he has reasonable borrowing privileges.2

However, we disagree with plaintiff’s premise that Const 1963, art 8, § 9

requires that each individual public library facility in Michigan must be

“available” on identical terms to all residents of the state. Rather than addressing

the obligations of individual library facilities, this provision is better understood,

in our judgment, as assuring the availability of public libraries in general.3 That is,

the Legislature shall make public libraries available, not necessarily each

individual library facility. Const 1963, art 8, § 9 does not refer to “each and

every” public library or to “individual” public library facilities, but refers only to

the legislative obligation to provide for the “establishment and support of public

libraries.” By this use of the plural, as well as the use of the broad terms

“establishment and support,” we believe that the constitution refers to “public

libraries” as an entity, i.e., public libraries as an institution. It is this entity, this

2
Although Justice Cavanagh agrees with us that public library
“availability” encompasses book borrowing, he criticizes us for not adequately
explaining why this is so. Post at 3 n 1. Given this view, it is curious that he
would provide absolutely no explanation of his own for why he agrees with us in
this regard.
3
Justice Cavanagh describes us as holding that as long as libraries are
“‘generally’ available,” see, e.g., post at 1, art 8, § 9 is satisfied. In so doing, he
mischaracterizes this opinion. We do not hold that “general” availability satisfies
the constitution. Instead, we hold that “availability” must be understood in terms
of the public library as an institution rather than in terms of each individual library
facility.

5

institution-- the public library-- that must be made “available” to all residents, not

each individual library facility.4

4
Justice Cavanagh criticizes us for ignoring the “common understanding”
of the ratifiers. See post at 7. More accurately, we simply disagree with Justice
Cavanagh concerning such “common understanding.” He points to nothing
occurring at the convention, nothing communicated by the convention, and
nothing understood by the people in ratifying the product of the convention that
supports his interpretation of the “common understanding.” Indeed, much of what
Justice Cavanagh cites from the debates, if not altogether irrelevant, affirmatively
supports our position. See, e.g., post at 10, quoting 1 Official Record,
Constitutional Convention 1961, at 822 (“‘The committee presumes that
legislation may be written so that each library may make reasonable rules for the
use and control of its books. . . . [T]o make libraries more available to the people
their services may be expanded through cooperation, consolidation, branches and
bookmobiles.’”); post at 10 n 2, citing 1 Official Record, Constitutional
Convention 1961, at 835 (“The committee conveyed that it was the Legislature’s
place to legislate the details.”). Because we believe that the actual language of the
proposed constitution constitutes the best evidence of the “common
understanding,” Studier, supra at 652, we rely on this language. Considering this
language (as well as the circumstances that necessitated modification of the
“library provision” of the constitution, see n 11 of this opinion), we do not believe
that the ratifiers understood Const 1963, art 8, § 9 to require each individual
library facility to allow each resident of the state to borrow books-- regardless of
all other considerations, including the impact of such a policy on communities’
incentives to establish and maintain local public libraries.

Justice Cavanagh approvingly cites the amici curiae briefs and affidavits of
two former constitutional convention delegates. However, just as this Court is not
bound by what individual members of the Legislature subsequently state was the
specific intent behind a particular statute, Bd of Ed of Presque Isle Twp School
Dist No 8 v Presque Isle Co Bd of Ed, 364 Mich 605, 611-612; 111 NW2d 853
(1961), we are not bound by what two of 144 convention delegates state 45 years
after the fact was the specific intent behind a particular constitutional provision.
Indeed, this stricture is even more true with respect to a constitutional provision
than a statute because it is not the intent of the delegates that is controlling, but the
intent of the ratifiers-- “we the people.”

6

 By way of example, the very same article of the constitution reads,

“[r]eligion, morality and knowledge being necessary to good government and the

happiness of mankind, schools and the means of education shall forever be

encouraged.” Const 1963, art 8, § 1. Such “encourage[ment]” of schools, to

continue “forever,” does not, we believe, prohibit the cities of Detroit or Saginaw,

for example, from ever closing an underutilized or an out-of-date school, for

individual school facilities are simply not the subject of this provision. Rather, it

is schools as an entity, as an institution, that must “forever be encouraged.”5

Likewise, in Const 1963, art 8, § 9, it is not each individual library facility that

must be made available, but rather public libraries as an entity or as an institution

that must be made available.

And this is precisely what the Legislature has done. Acting pursuant to its

constitutional obligation to “provide by law for the establishment and support of

public libraries which shall be available to all residents of the state,” the

Legislature has enacted numerous laws.6 The premise of these laws appears to be

5
See also Const 1963, art 8, § 8 (“Institutions, programs and services for
the care, treatment, education or rehabilitation of . . . [the] disabled shall always be
fostered and supported.”). Does this provision truly require that no individual
“institution, program or service” can ever be eliminated or replaced, or does it
simply establish a constitutional policy of encouraging such “institutions,
programs, and services”?
6
Justice Cavanagh criticizes us for considering “later-enacted legislation”
to modify the meaning of “available.” Post at 2, 5. More accurately, we look to
“later-enacted legislation” as evidence that the Legislature has fulfilled its
(continued…)

7

that the mandate of the constitution can best be achieved by (a) the encouragement

of local control of public libraries;7 and (b) the establishment of a system in which

communities with public libraries can enter into agreements with communities

without public libraries in order to extend access to such libraries.8

(…continued)

constitutional obligation to provide for the “establishment and support of public

libraries.” Ironically, Justice Cavanagh himself looks to both “later-enacted

legislation” and “later-issued” Attorney General opinions. Post at 15-17.

We agree with Justice Cavanagh that it is not for the Legislature to
ultimately determine the meaning of “available” under art 8, § 9. See post at 5.
Rather, after the Legislature and the governing bodies of the libraries have
established rules for availability (as they have done here), the courts must
ultimately determine whether what they have done meets the constitutional
standard of availability under art 8, § 9.
7
See MCL 397.206 (“Every [municipal] library . . . shall be forever free to
the use of the inhabitants where located.”); MCL 397.301 (“any county shall have
the power to establish a public library free for the use of the inhabitants of such
county . . . with the body having control of such library, to furnish library service
to the people of the county”); MCL 397.561a (“A library may charge nonresident
borrowing fees to a person residing outside of the library’s service area, including
a person residing within the cooperative library’s service area to which that library
is assigned, if the fee does not exceed the costs incurred by the library in making
borrowing privileges available to nonresidents including, but not limited to, the
costs, direct and indirect, of issuing a library card, facilitating the return of loaned
materials, and the attendant cost of administration.”).
8
MCL 397.301 (“any county . . . may contract for the use . . . of a public
library already established within the county”); MCL 397.213(1) (“a township,
village, or city adjacent to a township, village, or city that supports a free public
circulating library . . . may contract for the use of library services with that
adjacent township, village, or city”); MCL 397.214(2) (“the library board of
directors of a township, city, or village supporting and maintaining a free public
circulating library . . . may enter into a contract with another township, city, or
village to permit the residents of that other township, city, or village the full use of
the library)”; MCL 397.216 (“After fulfilling the contractual requirements, the
(continued…)

8

 By these principles-- local control and the encouragement of

interjurisdictional agreements-- the Legislature has sought to satisfy its

constitutional obligations by incentivizing communities both to build and to

maintain libraries, and to extend their availability to communities that lack a

library. Had the Legislature acted unwisely in the adoption of these principles, it

nonetheless would be entitled to considerable deference from this Court, for it is

the Legislature explicitly that has been given primary responsibility by the

constitution for the “establishment and support of public libraries.” However, it

seems clear that the Legislature, with the support of the public library community,

has acted wisely.

Justice Cavanagh acts considerably less wisely in seeking to substitute his

own judgment for that of the Legislature. He would undo the incentives enacted

by the Legislature for the establishment and maintenance of public libraries. He

would disincentivize communities from building libraries by making them

(…continued)
people of a township, village, or city which has contracted for library services with
another township, village, or city shall have all rights in the use and benefits of the
library that they would have if they lived in the township, village, or city where
the library is established.”); MCL 397.555 (“To be eligible for membership in a
cooperative library, a local library shall . . . (d) Maintain an open door policy to
the residents of the state, as provided by section 9 of article VIII of the state
constitution of 1963.”); MCL 397.561 (“Following establishment of a cooperative
board, residents of the cooperative library’s area are eligible to use the facilities
and resources of the member libraries subject to the rules of the cooperative
library plan. Services of the cooperative library, including those of participating
libraries, are to be available at reasonable times and on an equal basis within the
areas served to schoolchildren, individuals in public and nonpublic institutions of
(continued…)

9

identically available to persons who had and who had not paid for them; he would

disincentivize communities from maintaining libraries by making improvements

and new accessions identically available to persons who had and who had not paid

for them; he would disincentivize non-library communities from entering into

cooperative agreements with library communities by allowing persons to enter

into individual agreements; and he would deprive library communities of the

revenues that would be lost as a result of the combination of these disincentives.9

(…continued)

learning, and a student or resident within the area.”).

9
Indeed, although he skirts the question, Justice Cavanagh, by apparently
requiring library communities to subsidize nonresidents entering into individual
agreements, would incentivize such agreements while disincentivizing cooperative
agreements. He skirts this question by failing to make clear what amount Mr.
Goldstone could be required to pay the Bloomfield Township library for his new
“constitutional right” of borrowing privileges. Does Justice Cavanagh agree with
Delegate Higgs, whom he quotes, post at 11-12, that no charges at all could be
imposed under the constitution for this privilege? Does Justice Cavanagh agree
with plaintiff himself that the library could not recoup the “indirect” costs of
taxation that are borne by citizens of Bloomfield Township for their library? On
these and related questions, Justice Cavanagh uncharacteristically defers to the
Legislature to “sort[] out [the] financial details.” Post at 11. Thus, he avoids
addressing what is at the heart of plaintiff’s argument, namely that nonresidents
are constitutionally entitled to identical library privileges as residents, and at a
significantly lower cost than borne by residents. That is, nonresidents are entitled
to identical library privileges subsidized by the taxpayers of another community.
This anomalous result is not compelled by Const 1963, art 8, § 9, and further
highlights the transformation of state library policy, and the distorted incentives,
that Justice Cavanagh would institute.

Justice Cavanagh simply makes no sense on the issue of fees. At one point,
he states, “I offer no opinion regarding whether . . . fees are permitted,” post at 18
n 6, yet at another point, he states, “libraries can protect themselves from the
financial ruin the majority predicts simply by exercising their rights to charge a fee
(continued…)

10

 As a result, over time, Justice Cavanagh would almost certainly produce an

environment in which fewer new libraries are constructed, fewer new books are

purchased, fewer cooperative agreements are reached, and local support of public

libraries declines. Public libraries would become less, not more, available,

although Justice Cavanagh doubtless would take solace that every resident would

have absolutely identical access to the dwindling and outworn library resources of

the state.

Pursuant to Const 1963, art 8, § 9, it is the Legislature that is empowered to

exercise judgments concerning how to “provide by law for the establishment and

support of public libraries.” Although Justice Cavanagh is free to disregard

economic realities and to ignore the logic of incentives and disincentives, the

Legislature is not obligated to proceed along these same lines. The Legislature,

altogether reasonably we believe, has determined that the “availability” of public

libraries is best achieved through the institutions of local control and the

encouragement of cooperative agreements. We defer to this judgment.

Indeed, it appears from statistics offered by the Michigan Department of

History, Arts, and Libraries that less than 1/5 of 1 percent of the population of

(…continued)
for nonresident book borrowing . . . .” Post at 13 n 4. At yet another point, he
asserts that it is the “Legislature’s place to legislate the details,” post at 10 n 2, but
then criticizes us for commenting on the incentives and disincentives that the
Legislature must have weighed in carrying out its constitutional obligation to
“provide by law for the establishment and support of public libraries.” Post at 20.

11

Michigan does not have a public library available either directly through their

communities or through a cooperative agreement.10 This is to be contrasted with

the history of the predecessor provision to Const 1963, art 8, § 9, which mandated

that the Legislature establish public libraries in every township and city. After

125 years of such a mandate in 1962, a public library had been established in only

7 percent of the cities and townships of Michigan.11 Particularly against this

historical backdrop, the Legislature’s judgment that public libraries can best be

10
The department asserts that there are only 21 townships in Michigan with
a population totaling 17,055 that do not have a library and that do not contract
with another city or township for library services. Inexplicably, the department
does not indicate how many cities are similarly lacking. Although we cannot
imagine that this figure is very high, Bloomfield Hills obviously is one such city.
11
In 1963, there were “over a million [Michigan residents that] ha[d] no
access to public libraries.” Cushman, Libraries in the proposed new state
constitution, 29 Michigan Librarian 1, 4 (1963).

Perhaps more than anything, it is this hard fact-- the relatively modest
success of the predecessor provision in ensuring public library access to the people
of Michigan-- that explains the majority’s and Justice Cavanagh’s different
understandings of the significance of the “circumstances” surrounding the
ratification of Const 1963, art 8, § 9. Contrary to his assertion, we do not “ignore”
these circumstances; we simply interpret them differently than he does. The
predecessor provision mandated that the Legislature establish public libraries in
every township and city. Justice Cavanagh argues that it is illogical to believe that
the citizens of Michigan would willingly give up the constitutional guarantee of a
library in their own township or city for a constitutional guarantee of public
libraries in general being made available. Post at 25. However, the Address to the
People accompanying Const 1963, art 8, § 9, observed that the predecessor
provision “has never been adhered to as a matter of practice.” 2 Official Record,
Constitutional Convention 1961, p 3397. We believe that it is entirely “logical”
that the people would relinquish an illusory and unrealistic “right” in order to
achieve a reality of greater library access. And history in this regard has proven
(continued…)

12

made available by encouraging local control and cooperative agreements, and

thereby incentivizing their “establishment and support,” appears to be an entirely

reasonable and responsible judgment that should not be upset by this Court.12

B. OTHER CONSTITUTIONAL ARGUMENTS

Plaintiff also argues that the township library’s policy of not offering

nonresident book-borrowing privileges violates his First Amendment “right to

receive information” under the United States Constitution,13 and his right not to be

deprived of “the equal protection of the laws” under the United States and

Michigan constitutions.14 We disagree.

(…continued)
the people right.
12
Justice Cavanagh presents us with several questions. First, “[o]n what
basis is the majority’s conclusion reached?” Post at 3. Our conclusion is reached
on the basis of the language of Const 1963, art 8, § 9, and the circumstances
surrounding the change in language from its predecessor provision. Second, “why
does the majority rely only on its ‘belief’ of what the provision means, rather than
on its belief of what the people believed it meant?” Post at 3-4. What we
“believe” the provision to mean and what we believe that the people “believed” it
to mean are one and the same and Justice Cavanagh cites nothing to suggest that
the people believed it to mean something else or that they had a contrary
“common understanding.” Finally, “[w]hat exactly are ‘generally available’
libraries?” Post at 4 (emphasis in the original). Again, we do not hold that each
individual library facility must be “generally available.” Rather, we hold that
public libraries in general must be available. See n 3 of this opinion.
13
We must emphasize once again, see n 9, that the right asserted by
plaintiff is better characterized as the “right to receive information subsidized by
the taxpayers of another community.”
14
US Const, Am I; Const 1963, art 1, § 2; US Const, Am XIV.

13

 Plaintiff cites four cases to support his argument that the township library’s

policy of not offering nonresident book-borrowing privileges violates the First

Amendment. The first case-- Martin v City of Struthers, 319 US 141; 63 S Ct 862;

87 L Ed 1313 (1943)-- held that a municipal ordinance that prohibited people from

knocking on doors to distribute leaflets violated the First Amendment. The second

case-- Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510

(1965)-- held that a state statute prohibiting the use of contraceptives violated the

right of marital privacy. The third case-- Kreimer v Morristown Bureau of Police,

958 F2d 1242 (CA 3, 1992)-- held that a public library’s rule prohibiting

disruptive behavior and offensive bodily hygiene did not violate the First

Amendment. The fourth case-- Salvail v Nashua Bd of Ed, 469 F Supp 1269

(1979)-- held that a school board’s removal of a certain magazine from the library

based on its content violated the First Amendment. First, we must note that we

are, of course, not bound by either Kreimer or Salvail. Abela v Gen Motors Corp,

469 Mich 603, 606; 677 NW2d 325 (2004). Second, and most importantly, not

one of the cases that plaintiff cites held, or even remotely suggested, by

implication or otherwise, that the First Amendment requires a public library to

offer nonresident book-borrowing privileges.

The most relevant case cited is Kreimer, supra at 1255, which merely held

that the First Amendment protects “the right to some level of access to a public

library.” In this case, the township library indisputably allows nonresidents “some

level of access to a public library.” Therefore, even under Kreimer-- the most

14

relevant and the most favorable case that plaintiff has cited in support of his

argument, although we emphasize again not a case that is controlling or that has

been adopted in this state-- it is clear that a township library’s policy of not

offering nonresident book-borrowing privileges does not violate the First

Amendment.

Plaintiff’s equal protection challenge likewise fails. Plaintiff alleges no

discrimination here based on race, national origin, ethnicity, gender, or

illegitimacy. Accordingly, this Court applies a “rational basis” analysis.15 See,

e.g., Crego v Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000). Under

such an analysis, “courts will uphold legislation as long as that legislation is

rationally related to a legitimate government purpose.” Crego, supra at 259. In

order to have a law declared unconstitutional, a challenger must demonstrate that

it is arbitrary and that the law is “‘wholly unrelated . . . to the objective of the

statute.’” Id., quoting Smith v Employment Security Comm, 410 Mich 231, 271;

301 NW2d 285 (1981). No showing of this sort is possible here. The purpose of

the township library’s residency requirement is to create a viable means of

establishing and maintaining a local public library; it is a means consistent with

the Legislature’s constitutional direction to make public libraries available to the

residents of this state. For the reasons discussed in this opinion, the library’s

15

regulations are a reasonable way to achieve its purpose, and, thus, there is no equal

protection violation.

IV. CONCLUSION

Const 1963, art 8, § 9 does not require each and every individual public

library facility in Michigan to offer nonresident book-borrowing privileges.

Accordingly, we affirm the Court of Appeals decision affirming summary

disposition for the township library.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

(…continued)
15
The rules governing the interpretation of statutes apply with equal force
to the interpretation of local ordinances. See, e.g., Gora v City of Ferndale, 456
Mich 704, 711; 576 NW2d 141 (1998).

16

 STATE OF MICHIGAN

SUPREME COURT

GEORGE H. GOLDSTONE,

Plaintiff-Appellant,

v No. 130150

BLOOMFIELD TOWNSHIP PUBLIC
LIBRARY,

Defendant-Appellee.

CAVANAGH, J. (dissenting).

Imposing a bizarre semantical construct on Const 1963, art 8, § 9, and

ignoring the circumstances surrounding its ratification, the majority’s decision in

this case divests Michigan citizens who reside in a town that does not have a

library of their constitutional right to borrow books from other libraries. Despite

the clear mandate from the people of this state that libraries “shall be available to

all residents of the state,” Const 1963, art 8, § 9, the majority decides that as long

as libraries are “generally” available, the constitutional obligation is fulfilled.

The majority accomplishes this through an unusual analysis that fails to account

for the history of and purpose behind the constitutional amendment. In doing so,

the majority attributes a trade-off to the people of this state that the people did not

make. Thus, I dissent.
 To obtain a true understanding of what the constitutional language means

and how it must be enforced, one must actually consider the people’s

understanding of what it meant to have our libraries “available,” for it is the

people’s understanding of the amendment at the time they ratified it that governs

the analysis. One cannot, as the majority does, ante at 7-13, consider concerns

that may have arisen later or that exist today, such as policy issues or

hypothetical financial considerations. Nor may we look to other constitutional

provisions or later-enacted legislation as clues to the amendment’s meaning. See

ante at 7-8. Rather, the people’s understanding is properly evaluated in a way we

have explained as follows:

In interpreting the constitution, this Court has developed two
rules of construction. First, the interpretation given the constitution
should be “the sense most obvious to the common understanding”;
the one which “reasonable minds, the great mass of people
themselves, would give it”. Traverse City School Dist v Attorney
General, 384 Mich 390, 405; 185 NW2d 9 (1971); Council No 11,
AFSCME v Civil Service Comm, 408 Mich 385, 405; 292 NW2d 442
(1980) (quoting Cooley’s Const Lim [6th ed], p 81). Secondly, “the
circumstances surrounding the adoption of the constitutional
provision and the purpose sought to be accomplished may be
considered”. Traverse City School Dist, 384 Mich 405. See
Kearney v Board of State Auditors, 189 Mich 666, 673; 155 NW 510
(1915). [Soap & Detergent Ass’n v Natural Resources Comm, 415
Mich 728, 745; 330 NW2d 346 (1982).]
Although the majority acknowledges the existence of this standard, ante at

3-4, and at least purports to apply it to conclude that the people understood

2

libraries to be lending institutions,1 the majority makes no further mention of

these principles as it proceeds to decide how the concept of “availability” must be

interpreted. Thus, the majority reaches the unexplained (and inexplicable)

conclusion that the people intended that libraries would “in general” be available.

The majority’s core analytical misstep occurs ante at 5-6, where it states,

However, we disagree with plaintiff’s premise that Const
1963, art 8, § 9 requires that each individual public library facility in
Michigan must be “available” on identical terms to all residents of
the state. Rather than addressing the obligations of individual
library facilities, this provision is better understood, in our judgment,
as assuring the availability of public libraries in general. That is, the
Legislature shall make public libraries available, not necessarily
each individual library facility. Const 1963, art 8, § 9 does not refer
to “each and every” public library or to “individual” public library
facilities, but refers only to the legislative obligation to provide for
the “establishment and support of public libraries.” By this use of
the plural, as well as the use of the broad terms “establishment and
support,” we believe that the constitution refers to “public libraries”
as an entity, i.e., public libraries as an institution. It is this entity,
this institution—the public library—that must be made “available”
to all residents, not each individual library facility.
I must echo what every reader must now be thinking: “What?” On what

basis is the majority’s conclusion reached? And why does the majority rely only

on its “belief” of what the provision means, rather than on its belief of what the

people believed it meant? What exactly are “generally available” libraries? The

authority on which the majority’s conclusion is drawn is glaringly absent.

1
Although I agree with the majority that the common understanding of the
term “public library” at the time of ratification was that of an institution from
which books could be borrowed, I note that the majority appears to divine that
meaning from thin air rather than discuss how it may have reached it.
(continued…)

3

 I fail to see the relevance of the other constitutional provisions the

majority proffers to support its conclusion. The people’s intent with respect to

Const 1963, art 8, § 9, is not assessed by reference to Const 1963, art 8, § 1, a

provision regarding “schools and the means of education,” or Const 1963, art 8, §

8, a provision regarding institutions, programs, and services for the disabled.

Moreover, the majority’s attempt to analogize the three provisions is a stretch so

thin it defies credibility. And the majority should review Const 1963, art 8, § 2,

which states in part, “The legislature shall maintain and support a system of free

public elementary and secondary schools as defined by law.” Under the

majority’s rationale, this provision would mean that schools should be “generally

available,” but would stop short of guaranteeing that every student has a right to

have a school fully available to him. Further, Const 1963, art 8, § 1, is a general

statement that espouses the importance of education in general, while the

subsequent provisions of article 8, such as § 2 (schools) and § 9 (libraries), detail

the specific means by which education will be promoted.

The majority’s subsequent orations on library funding issues are not only

irrelevant to the analysis, but they also demonstrate a critical misunderstanding of

the issue at hand. The majority fails to grasp that the interpretation of “available”

is not subject to post-ratification whims of the Legislature, courts, or governing

(…continued)

4

boards of libraries. It is not the Legislature’s province to determine “that the

‘availability’ of public libraries is best achieved through the institutions of local

control and the encouragement of cooperative agreements.” Ante at 11. Rather,

the meaning of the term “available” was set when the people ratified Const 1963,

art 8, § 9, and that meaning is not now modifiable. Under the clear language of

the constitutional provision, the Legislature is to enact laws that “establish” and

“support” public libraries, which libraries must be “available” to all people.

Nothing in the language allows any entity to alter the meaning of “available” or

govern its scope after the fact. Moreover, we are not to determine what meaning

of “available” makes the most sense today, as the majority prefers to do, but how

that term was understood in 1963.

Rather than being charged with determining what it means to have

libraries available, the constitutional provision requires the Legislature to enact

laws that establish our public libraries and to develop ways in which those

libraries can be supported, while the local library boards may promulgate

regulations relating to the logistical and administrative tasks intrinsic to running a

library, including the process for lending books to nonresidents who are not

otherwise covered by a cooperative agreement. Const 1963, art 8, § 9; see also

OAG, 1983-1984, No 6,188, p 195 (October 17, 1983). The distinction, though

fine, and though missed by the majority, is material. Local library boards may

adopt rules that assist them with administering the libraries in the process of

5

making them “available.” For instance, local library boards might regulate the

number of books that can be borrowed at one time, the cost of borrowing fees, or

the length of time a book can be borrowed. Similarly, library boards can regulate

the use of their meeting rooms, the length of time one can use a computer, or the

hours the library will be open. They cannot, however, impede the fundamental

principle of “availability” as that term was understood when ratified.

Thus, we must determine what sense of the “availability of libraries” was

most obvious to the common understanding of the great mass of the people of

this state. Soap & Detergent, supra at 745. Having conducted my own inquiry

into the people’s intent, I agree with the majority that the understanding most

common to the people was that libraries were lending institutions. But the

analysis cannot end there; rather, we must also examine the “‘circumstances

surrounding the adoption of the constitutional provision and the purpose sought

to be accomplished,’” Soap & Detergent, supra at 745, quoting Traverse City

School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), to

reach an understanding of what it meant to the people to have these lending

libraries “available.” Although such an analysis would lead to the conclusion

that the people ratified a constitutional provision that would do more than

promote some ethereal sense that lending libraries would “in general” be

available, whatever that might mean, the majority blatantly ignores the people’s

understanding and in fact, as noted, makes no inquiry into it whatsoever.

6

 In construing the meaning of a constitutional provision with the ultimate

goal of discerning the people’s intent, “the technical rules of statutory

construction do not apply.” Traverse City School Dist, supra at 405, citing

McCulloch v Maryland, 17 US (4 Wheat) 316, 407; 4 L Ed 579 (1819). Further,

“it is not to be supposed that [the people] 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.’” [Id., quoting Cooley,
Constitutional Limitations, p 81 (emphasis in original).]
The majority’s theory about “general availability” and plural and singular

word forms are hypertechnical conclusions that run roughshod over the principle

explained by Justice Cooley. The majority’s interpretation is both a dark and

abstruse meaning that is quite opposite to the sense most obvious to the common

understanding. At the time this amendment was ratified, in the face of language

that read, “The legislature shall provide by law for the establishment and support

of public libraries which shall be available to all residents of the state . . . ,” the

people of Michigan certainly did not understand that language to convey an

indeterminate promise that libraries would “in general” be available, which, in

the majority’s view, means merely that some library somewhere in the state must

lend books. Rather, basic common sense dictates that this wording guaranteed

actual availability of libraries to all people in the sense that each library would be

available for each citizen’s use. Indeed, the people ratified a constitutional

7

provision that mandated the availability of lending institutions to “all citizens,”

not “some citizens” or just citizens who are under a library service agreement.

The majority’s declaration that when ratifying the constitutional

amendment, the people believed they were ratifying a provision that would

replace their indelible right to full library access with an impotent “right” to have

the availability of libraries “generally” encouraged, almost hints of a shell game.

Moreover, the majority violates a cardinal rule of construction by adding words

to the provision. Rather than seek the dark or abstruse meaning, or assume that

the people parsed the language and came to this agreement on its grammar,

syntax, and semantics, I would heed the axiomatic principles that guide us in

determining the meaning behind a constitutional provision. The commonsense

meaning must be imposed, and the circumstances surrounding the amendment

must be examined.

I must note the irony of the majority’s conclusion that the citizens would

have understood libraries to be lending institutions, which is clearly a

commonsense interpretation, contrasted with its peculiar conclusion that the

people would have understood “availability” as a term that did not guarantee

availability to each citizen, which is clearly not a commonsense interpretation.

The majority swings twice but hits only once.

Having discussed the commonsense meaning behind the provision, which,

in my view, is easily detectable, I turn now to the circumstances that existed

8

during the time the constitutional provision was proposed and ratified. The

circumstances surrounding the promulgation of article 8, § 9, were captured in

the record made of the discussion and debates about the constitutional

amendment at the constitutional convention. Before the 1963 constitutional

amendments were ratified, the previous constitution required each Michigan

township and city to maintain at least one public library. Const 1908, art 11, §

14. Sparking the committee on education’s proposed revisions to that mandate

was the reality that many townships and cities were not maintaining a public

library, mostly for financial reasons. Thus, the delegates sought to relieve

townships and cities of the burden of maintaining a library while still preserving

the right of the people to access a library. See, generally, 1 Official Record,

Constitutional Convention 1961, pp 822-837.

Of paramount concern, as reflected in the transcript of the convention

debate, was library funding. Delegates discussed at length the necessity of

allowing the Legislature to promulgate regulations that would promote the

economic feasibility of reducing the required number of libraries while increasing

the number of citizens who may use the libraries. Delegate Alvin M. Bentley,

chairman of the committee on education, thoroughly explained that while the

time had come to transition from the original constitutional mandate, the new

constitutional mandate would not only preserve, but increase, library availability:

This section continues the fine Michigan tradition of
encouragement and support of public libraries throughout the state,

9

 but it does attempt to eliminate some of the confusing elements of
the present article XI of section 14. The 1908 constitution states:
“The legislature shall provide by law for the establishment of at least
1 library in each township and city; . . .” This has never been
adhered to as a matter of practice. Today, only 1 out of 15
townships has a library.
The present language emphasizes that “public” libraries will
be “available” to residents without fixing how or where the libraries
themselves shall be organized. The committee presumes that
legislation may be written so that each library may make reasonable
rules for the use and control of its books.
Under this proposal present libraries will be retained. But to
make libraries more available to the people their services may be
expanded through cooperation, consolidation, branches and
bookmobiles. [1 Official Record, Constitutional Convention 1961, p
822 (emphasis added).]
With financial concerns at the forefront, the scope of privileges that would

be afforded to nonresidents using another municipality’s library was thoroughly

explored during the debate.2 Most delegates were clear that the citizens in towns

2
Defendant argues that had the intent behind the constitutional amendment
been to require all public libraries to offer all services to all people, the provision
would have explicitly detailed the inner workings of the new library system. But
the committee on education was strongly against including any specificity in the
constitutional language for the good reason that it was the constitution. The
committee delegates strove for brevity, something they specifically discussed
during the convention debates. The committee conveyed that it was the
Legislature’s place to legislate the details. See 1 Official Record, Constitutional
Convention 1961, p 835 (“[T]he committee believed that this provision should be
in this respect as broad and general in scope as possible. . . . [O]bviously we
recognize that there must be qualifications, there must be reservations, there must
be individual problems which must be met. And I submit that we cannot and we
should not try to meet them in this constitution. Let’s leave that up to the
legislative and statutory action.”). For obvious practical reasons, the delegates
chose not to expound endless details about the library system in the constitutional
language.

10

with libraries should not be required to subsidize the costs of nonresidents using

their libraries, but, prudently, they left the sorting out of financial details to the

Legislature.3 (“The legislature shall provide by law for the establishment and

support of public libraries which shall be available to all residents of the state

under regulations adopted by the governing bodies thereof.” Const 1963, art 8, §

9 [emphasis added].)

But not all delegates were convinced that the question of cost-based

library use was open on the face of the amendment’s language. Delegate Milton

E. Higgs, for example, questioned whether the constitutional language meant not

only that making libraries available to all citizens meant that all citizens could

borrow books, but that no charge could be assessed for the privilege:

I would say that when you say “which shall be available to all
residents of the state” in the constitution, that you could not limit or
qualify that in any way by the requirement of a deposit for the use of
the book to guarantee its return or anything else. You say “It shall
be available to all residents of the state.” This is like saying in a
criminal case, “You’ve got a right of appeal.” When you say,
“You’ve got a right of appeal,” you’ve got that right whether you’ve
got the money to pay for it or not. In fact, if you don’t have the
money to pay for it, the county has to provide it in that case, and I
say in this case the same thing would apply.” [1 Official Record,
Constitutional Convention 1961, p 836.]
Indeed, the debate centered primarily on how libraries would be funded

under the new language and whether nonresidents would or could be made to pay

(continued…)

11

for using the services, including book lending, of libraries in other municipalities,

not on whether nonresidents could borrow books at all. In fact, when the topic of

book borrowing was broached, delegate Karl K. Leibrand expressed concern that

providing a free “full time library service [to nonresidents], with the circulation

of books, [would be] an undue burden.” 1 Official Record, Constitutional

Convention 1961, p 834. In response, the chairperson of the subcommittee on

libraries of the committee on education, delegate Vera Andrus, explained that

contracts between municipalities were one solution to that concern and that the

language of the proposed amendment “doesn’t say free.” Id. at 835. Elsewhere

in the dialogue, delegate Bentley asked, “[A]s long as a person from any part of

the state can come up to your library and conform with your local regulations and

rules, he can have that library and its services and its books made available to

him. Would you say that that was covered?” Id. at 836. Delegate Higgs

responded, “I would say that would be covered.” Id.

These passages and the balance of the debate on the proposal quite clearly

evidence that the key concern was, given that library services must be made

available to all citizens, how the libraries would pay for the increase in use. As is

also clear, the unanimous resolution of that question was to engraft onto the

(…continued)
3
I must correct the majority. It is not I who am leaving these details to the
Legislature, ante at 10 n 9; it is the people of Michigan who left these details to the
Legislature by ratifying a constitutional amendment that said precisely that.

12

constitutional amendment a grant of authority for the Legislature to promulgate

laws that would provide for this support. But the assumption was that library

services, free or not free, would be fully available to all citizens.4 Glaringly

absent from the debate is any proffering of the idea that Michigan residents

would be unilaterally deprived of the right to borrow books if they live in a

community without a library.

In fact, two delegates who were present during and participated in the

constitutional convention debates have appeared before this Court as amici curiae

to share their recollections of how the proposed constitutional amendment was

commonly understood at that time. And in our quest to ascertain the meaning

behind the constitutional provision, their thoughts are enlightening and

beneficial.5 Former delegates Tom Downs and Milton Higgs have averred to this

Court that the constitutional provision was intended, and was commonly

understood, to mean that “the words, ‘available to ALL RESIDENTS OF THE

4
Although I cannot emphasize enough that the financial intricacies of our
public library system are the Legislature’s domain, the majority grievously errs by
blinding itself to the fact that libraries can protect themselves from the financial
ruin the majority predicts simply by exercising their rights to charge a fee for
nonresident book borrowing that fully reflects the cost of that service. MCL
397.561a.
5
Not to the majority, however, which readily tosses aside the insights of
these former delegates. See ante at 6 n 4. It must be irrelevant to the majority that
the statements of the former delegates today are consistent with what they said at
the convention 45 years ago.

13

STATE,’ included borrowing books during days and hours the library would

normally be open to the public.” Affidavit of Milton E. Higgs, May 25, 2006.

Higgs further explained that “it was commonly understood by the delegates that

some libraries required a nominal fee for a nonresident of the district reflecting

costs . . . .” Id. And Higgs shed further light on the meaning of the phrase

“under regulations adopted by the governing bodies thereof.” He pointed out that

those words

were added to committee proposal 31 during the floor debate to
allow some flexibility to the word “available” understanding that
such regulations be reasonable and that county law libraries although
available to the public would be free to continue the practice of
limiting circulation of its books so that they would be immediately
available for the judge, the lawyers, and the litigants having business
with the court when needed. [Id.]
Downs has the same recollections from his participation in the

constitutional convention. He recalls “[t]hat the common understanding

expressed by the delegates was that the purpose of Article VIII was to insure

ready access to the means of education by all citizens of Michigan regardless of

area of residency” and that the provision “required public libraries to permit all

state residents to borrow books regardless of area of residency.” Affidavit of

Tom Downs, May 5, 2006. Forty-five years later, both gentlemen agree with

what seems clear from the transcript of the constitutional convention debates: the

intent behind the constitutional provision was to enlarge citizens’ access to

libraries by allowing citizens to use any library in the state and to obligate the

Legislature to provide funding for this system.

14

 And the Legislature promptly did address funding matters by enacting a

series of regulations that established mechanisms through which adequate

funding could be achieved. Probably the most significant of the Legislature’s

solutions to the new library system’s financial challenges was the State Aid to

Public Libraries Act (SAPLA), former MCL 397.501 et seq., passed in 1965. In

the push for the passage of that bill, the Michigan Library Association’s president

exhorted the members to continue with the association’s “major effort” toward its

“top priority concern with its basic objective: good library service easily

available to every citizen of Michigan.” Purdy, The president comments, 29

Michigan Librarian 1, 1 (1963). The president identified the funding proposal as

a “concrete, practical step toward such universal access[.]” Id. In fact, the

president credited the association’s “rural and small town” members for the

passage of the preceding library funding bill of 1937, stating that those members

impressed upon the Legislature that they “wanted good library service and

demanded that the State accept its share of the responsibility for seeing that they

got it.” Id. at 2. This is yet additional evidence of the emphasis that was placed

on the availability of full library services to all Michigan citizens, even those in

rural areas whose towns could not afford their own libraries.

Amended several times since, the SAPLA is now codified at MCL

397.551 et seq. The SAPLA encourages townships and cities to create

coordinated library systems by establishing cooperative library plans. These

15

cooperative plans enable townships and cities to enter into contracts wherein a

town without a library pays financial consideration to a town with a library so

that the first town’s residents can use the library of the neighboring town. See,

e.g., MCL 397.555. Undoubtedly, these cooperative agreements ease the

financial burden of allowing nonresidents to use the public library of another

town or city.

Not every city and township without its own library, however, would

establish a cooperative agreement with another town. So the parameters of a

person’s ability to use another town’s library when residing in a town with

neither a library nor a cooperative agreement also had to be addressed. When the

question regarding the right of a library to refuse service to a nonresident first

arose, Attorney General Frank Kelley was asked whether Const 1963, art 8, § 9,

affords nonresidents full use of any public library. In light of the language and

history of the constitutional provision, the Attorney General sagely concluded

that

all public libraries and their facilities shall be available for use by all
state residents, subject to reasonable rules governing the use and
control of the library facilities. Clearly, under the constitutional
mandate, and the Convention debates, supra, the right of state
residents to use the facilities of any public library includes not only
the right to enter a public library and read books there, but the same
right to borrow books that is offered to residents of the community in
which the library is established subject to reasonable
regulations . . . .
The framers of Const 1963, art 8, § 9, supra, did not intend to
create, or perpetuate, a library system where library privileges are

16

 not provided to state residents on an equal basis. [OAG, 1979-
1980, No 5,739, p 874 (July 15, 1980) (emphasis added).]
Subsequently, after another lengthy analysis of the plain language of the

constitutional amendment and the purposes surrounding the amendment as

reflected in the convention debates, the Attorney General explained that the fees

to borrow books that are charged to a nonresident who is not covered under a

cooperative agreement must reasonably reflect the costs incurred by the library in

making those privileges available and that the costs must be proportionate “to the

cost, direct and indirect, of issuing a library card, facilitating the return of loaned

books, and the attendant cost of administration.” OAG, 1983-1984, No 6,188, p

203. This opinion prompted the Legislature to codify the Attorney General’s

pronouncements as follows:

A library may charge nonresident borrowing fees to a person
residing outside of the library’s service area, including a person
residing within the cooperative library’s service area to which that
library is assigned, if the fee does not exceed the costs incurred by
the library in making borrowing privileges available to nonresidents
including, but not limited to, the costs, direct and indirect, of issuing
a library card, facilitating the return of loaned materials, and the
attendant cost of administration. [MCL 397.561a.]
The Attorney General’s conclusions about the focus of the constitutional

convention debates match my own. And the series of events that occurred after

Const 1963, art 8, § 9, was ratified demonstrates the consistency with which the

meaning of the provision has been understood for more than 40 years. Beginning

with the committee on education’s explanations at the constitutional convention

and spanning numerous legislative enactments and three attorney general

17

opinions, the unified understanding was and has been that Const 1963, art 8, § 9,

allows any Michigan citizen to borrow books from any Michigan public library.

To address the resulting fiscal concerns and, thus, protect the libraries’ financial

integrity, the Legislature promptly authorized local library boards to assess fees

for that privilege.6

But despite the categorical evidence that the intent behind the provision

was to continue to make libraries fully available to all while removing the

burdensome requirement that every township and city maintain a public library,

and the striking absence of any evidence to the contrary, the majority decides

with the flick of a pen that a citizen without a public library in his town is at the

mercy of each individual library across the state with respect to whether he can

6
Curiously, plaintiff does not argue what the majority attributes to him.
The majority states that plaintiff argues that he is entitled to the “borrowing rights
equivalent to those of a township resident” and that “[a]nything less, . . . such as
that which was offered by the township—library access with no borrowing
privileges—violated the constitutional guarantee.” Ante at 2-3. To the contrary,
plaintiff fully accepts that the constitutional language allows defendant and local
library boards to charge him a nonresident book borrowing fee pursuant to MCL
391.561a. And in his efforts to borrow books from defendant, he offered to pay a
fee accordingly. (Because plaintiff does not challenge the Legislature’s authority
to allow such fees, I offer no opinion regarding whether such fees are permitted by
the Constitution. Moreover, I believe such a discussion would be imprudent
because that issue is not presented in this case, so I will not be baited into that
discussion by the majority. See ante at 10-11 n 9. And while it should not be
necessary, I will assist the majority by pointing out that questioning whether
nonresident book borrowing fees may be unconstitutional is not inconsistent with
my recognition that the statute does indeed permit them. See ante at 10-11 n 9.)

18

check out a book. Under the majority’s “rationale,” as long as some library

somewhere in the state allows book lending, that is close enough.7

And the majority’s philippic response to this dissent entirely ignores that

the Legislature has given libraries the authority to assess fees for nonresident

book borrowing that reflect the direct and indirect costs of that practice. MCL

391.561a. But even so, the majority’s attention to the purported financial

ramifications of nonresident book borrowing is not the concern of this Court.

The debate over funding was had, quite thoroughly in my opinion, at the

constitutional convention, and the decision was made to place the responsibility

for funding fully available libraries squarely in the hands of the Legislature.

The majority seems to be suggesting that nonresident book borrowing

would bankrupt the entire library system and compel all public libraries into a

downward spiral of decrepitness and decay that will culminate in crumbling

buildings and dusty old dog-eared collections that nobody wants to read. See

ante at 9-11. I refuse to credit such thespian antics. The Legislature has an

7
Contrast the majority’s conclusion that the constitution ensures only the
availability of libraries “in general” with its statement that it is “entirely ‘logical’”
that the people ratified the provision “to achieve a reality of greater library
access.” Ante at 12-13 n 11 (emphasis omitted). I fail to see how a belief that the
people were attempting to achieve a reality of greater library access is consistent
with the conclusion that the constitution guarantees the people nothing more than
the existence of a book lending library somewhere in the state. Moreover, the
majority could not be more wrong that “history in this regard has proven the
people right” after today’s decision. See ante at 13 n 11.

19

obligation to ensure that the libraries the public has a right to have available are

adequately supported. If financial struggles ensue, the Legislature is more than

equipped to deal with them, and the people of this state are more than equipped

to handle their concerns through the democratic process. Similarly, if the

people’s choice to require the full availability of libraries was fiscally unwise, its

correction “is not a judicial function, but rather ‘must be left to the people and the

tools of democracy: the “ballot box, initiative, referendum, or constitutional

amendment.”’” People v Maffett, 464 Mich 878, 895; 633 NW2d 339 (2001)

(Corrigan, J., dissenting), quoting People v McIntire, 461 Mich 147, 159; 599

NW2d 102 (1999), citing Dedes v Asch, 446 Mich 99, 123-124; 521 NW2d 488

(1994) (Riley, J., dissenting). See also Michigan United Conservation Clubs v

Secretary of State, 464 Mich 359, 389; 630 NW2d 297 (2001) (Corrigan, J.,

concurring); Robinson v Detroit, 462 Mich 439, 474; 613 NW2d 307 (2000)

(Corrigan, J., concurring). This Court has no place “incentivizing,”

“disincentivizing,” or otherwise engaging in any policy decisions with respect to

financing. See ante at 9-10 and n 9. In fact, “ignor[ing] the logic of incentives

and disincentives,” as I am accused of doing, ante at 11, is to interpret the

constitutional language as written and to avoid engaging in judicial activism.

Moreover, it is the majority who now gives the green “incentivization”

light for library boards to politicize their accessibility by creating regulations that

reach far further than merely preventing nonresident book borrowing onsite. For

20

example, when Bloomfield Township and the city of Bloomfield Hills could not

agree on a price for the renewal of their library service agreement,8 which failure

resulted in city of Bloomfield Hills residents’ loss of borrowing and other

privileges at defendant library, defendant commanded a “reciprocal agreement”

with 90 other libraries in which those libraries agreed not to lend books to any

city of Bloomfield Hills resident. Thus, despite that plaintiff was issued a

MichiCard9 from the Pontiac Public Library, he was refused book borrowing

privileges at the Baldwin Public Library and the West Bloomfield Public Library,

even though both libraries belong to the network of libraries accepting the

MichiCard. Those libraries informed plaintiff that under their agreement with

defendant, they “cannot furnish borrowing services to Bloomfield Hills city

residents unless they have a valid card from the Bloomfield Township Public

Library.” The majority allows this to continue, foisting on our citizens a public

library system that is subject to calculated measures to deprive plaintiff and

8
Defendant declined during discovery to provide information about the
costs of providing library services to nonresidents; thus, it is impossible to
comment about the fairness, or lack thereof, of the price it demanded from the city
of Bloomfield Hills in the contract renewal negotiations. But for the interested
reader, the city had been paying $226,460 annually, and the township asked for
$463,550 annually in the contract that failed.
9
The MichiCard is a statewide library card that allows holders of the card
to use the services, including book borrowing, of any participating library in the
state. Participating libraries are reimbursed by the state for postage costs
incidental to shipping books to patrons, as well as the replacement costs of items
that are not returned.

21

others like him of the full use of libraries. Surely this is not what our citizens

envisioned when they ratified a constitutional amendment that was to broaden

library availability. Indeed, to plaintiff, who is now denied book borrowing

privileges by 90 libraries, libraries are “generally not available.”10

It should be borne in mind that the proposed constitutional amendment did

not represent a marked change in existing practices. Before the ratification of

Const 1963, art 8, § 9, Michigan citizens enjoyed the right to fully and freely use

the public library in their town. No new rights were created by the adoption of

the constitutional amendment; there was simply a shift in how access to a library

would be afforded. Delegate E. L. Cushman shared her thoughts on the impact of

the constitutional provision with the Michigan Library Association in an article

entitled Libraries in the proposed new state constitution, 29 Michigan Librarian

4, 4-5 (1963):

Michigan differs from most states in that libraries have been
mentioned in our constitutions from the first in 1835 through the
1850 document down to the present one of 1908.[11]
The proposed new constitution of 1963 continues and
strengthens this tradition. The new wording accomplishes several
things:
10
In fact, not only can plaintiff not borrow books from defendant,
defendant also refuses to allow plaintiff to use the Internet at the facility. And
while nonresident children can use the Internet in the “Youth Room,” they are
denied remote access to the system.
11
I proudly note that Michigan citizens were the first in the nation to
bestow upon themselves a constitutional right to access a library.

22

 The addition of the word “support” “acknowledges the
growing need for statewide support for public libraries” . . . . While
this need has been recognized by the legislature, the new wording
gives it increased emphasis.
The new language recognizes the need for libraries available
to all residents of Michigan, whereas now over a million have no
access to public libraries.[12]
* * *
In brief, the new constitution continues the present systems of
organization and financing, while placing increased emphasis on
state support of libraries and on the need for statewide library
services.
Thus, instead of guaranteeing that the library a person could access would

be in that person’s town, the constitutional amendment guaranteed that all

libraries would be available to all people. The notion of “availability”—and the

attendant rights—remained constant. There is simply no basis on which to

conclude, and the majority provides none, that the people of this state understood

or agreed that the constitutional amendment meant that libraries would be

“generally” available, or that as long as some libraries are fully available to some

people, the constitutional mandate is fulfilled.

As defendant itself recognizes, “Clearly, as was set forth in the Address

[to the People], the delegates intended for existing libraries to fill the void in

service created by the failure of so many local communities to build their own

libraries.” (Emphasis added.) In lieu of requiring all townships and cities to

23

provide a library to their residents, the revision would “fill the void” by requiring

all libraries to be available to all citizens. The provision was a replacement of a

system that, while not working as intended, allowed all residents the full use of a

library. The revision was intended to fix what was broken, not to remove from

the citizenry the full use and enjoyment of libraries. And the intent behind the

revision was clearly reflected in the convention debates and has been manifested

by the legislative promulgation of regulations that allow the new system to work.

The majority trivializes the importance of the constitutional convention

debate and incorrectly characterizes its content. Ante at 6 n 4. The majority

states that it prefers to look to the “actual language” of the constitution rather

than at how the delegates were discussing and describing its meaning. Ante at 6

n 4. But what the delegates understood the proposed constitution to mean has

critical importance because it was their understanding that was then conveyed to

the people in an effort to educate the people about the proposed amendments

before the people voted on it in April 1963. In other words, the people derived

their understanding of the constitutional language from what was written by those

participating in the constitutional convention. So the explanation provided to the

people was premised on the delegates’ understanding after having participated in

(…continued)
12
Curiously, the majority cites the statistic mentioned in this sentence, ante
at 12 n 11, but ignores the context in which the statistic was used—namely, to
emphasize the need to make libraries fully available to all people.

24

the framing of the new text. It should come as no surprise, then, that the

publication What the Proposed New State Constitution Means to You, written by

the delegates and circulated to Michigan citizens, explained that “[t]he proposed

new language emphasizes that ‘public’ libraries will be ‘available’ to residents

without fixing how or where libraries shall be organized.” Id. at 81. The

publication states nothing about the proposed language guaranteeing only

“general” library availability.13

The majority’s “generally available” theory has no basis in fact or logic

and requires the belief that the citizens of Michigan willingly gave up the

guarantee of a free, community-based, fully accessible library for the unknown of

a possibly cost-based, possibly distant library that would have the authority to

severely restrict usability. It requires one to accept that the people gave up not

only their right to have a free library in their town, but also the right to borrow

books from any library. This conclusion is incredible both as a basic premise

and when viewed in the historical context of the constitutional amendment.

13
I can locate nothing from any other organization attempting to educate its
members about the proposed constitutional changes that conveys a contrary
understanding. Rather, the people of Michigan were being informed that the
constitutional amendment expanded library service. For example, the brochure
circulated by the League of Women Voters informed the League’s members that
“[p]rovisions for the handicapped and for libraries are broadened. . . . The
legislature is called on to provide for establishment and support of libraries
‘available to all residents’.” It’s Your Choice: The 1908 or the 1963 Constitution,
The League of Women Voters of Michigan, November 1962, p 16.

25

 In 1963, when asked to ratify a constitutional amendment that would

relieve communities of the burden of maintaining a library in exchange for

ensuring that all libraries would be “available” to all people, the people of

Michigan spoke. Pointlessly, the majority’s refusal to engage in a comprehensive

attempt to understand that voice divests the citizenry of a right it gained through

reasoned compromise. What was a practical and calculated exchange of rights at

the time is lost today through imposing on clear language an amorphous

postulation that is unsupported by both common sense and history.

Article 11, § 1, of the 1908 Constitution, existing today as Const 1963, art

8, § 1, reads as follows: “Religion, morality and knowledge being necessary to

good government and the happiness of mankind, schools and the means of

education shall forever be encouraged.” At the constitutional convention,

delegate Harold E. Bledsoe expressed alarm that the inherent purpose of

promoting library availability to Michigan citizens was becoming overshadowed

by some quibbling about the potential differences between city library funding

and county and township library funding. Highlighting the prominence that

Const 1908, art 11, § 1, should have over funding disputes in the interest of

promoting the education of our citizenry, delegate Bledsoe eloquently stated as

follows:

Now, to me, I cannot disassociate the means of education
from libraries. . . .
We must move forward and build libraries, big libraries, big
schools, better schools, better libraries if we are to move forward and

26

 remove our nation from the position of a second class power in the
field of science . . . . [1 Official Record, Constitutional Convention
1961, pp 830-831.]
Delegate Bledsoe, and countless others who share his views about the

critical role education should be given in our society, would undoubtedly be

saddened by today’s decision and by the story plaintiff tells of a young boy who,

according to plaintiff, lives in a city that has no public library. Some students in

the child’s class live in the township in which defendant is located and, thus, can

borrow books from defendant and complete research and homework assignments

with those resources. The young boy cannot. Consequently, defendant’s refusal

to allow nonresidents to borrow books is disadvantaging this child academically.

The majority’s decision will permit this story to be repeated endlessly

across the state. For example, in rural areas that cannot afford to maintain their

own libraries, there may not be a library for miles and miles around. If the

residents of such an area can manage to reach a library, they must now be

prepared to conduct their reading and research endeavors onsite. This is not what

our citizens bargained for, and it is precisely the opposite of what the then-

Michigan Governor extolled in 1962. Speaking to the Michigan Library

Association, the Governor encapsulated the challenge facing Michigan to

strengthen and expand Michigan libraries so that every person would have full

access to this great resource. Governor Swainson stated:

Every resident of Michigan is entitled to good library service.
It is imperative, therefore, that we continue our strides toward that
goal. Access for everyone to the great funds of knowledge and

27

 information found in our libraries is essential. I cannot overstress
the need for it. Our total library resources must be within the reach
of everyone. Information and the means to obtain it are vital to our
progress if we are to cope with the problems and complexities of
today’s changing world. An enlightened public is indispensable to
the preservation and progress of our democratic society. [Governor
John B. Swainson, Library Service to the People of Michigan:
Goals, Status, Progress, Michigan Library Association District
Meetings 1962.
On May 1, 1963, shortly before our 1963 Constitution was ratified, United

States Supreme Court Justice William J. Brennan, Jr., honored Law Day at the

75th anniversary of the Newark (New Jersey) Public Library. Justice Brennan

explained that it was “most appropriate, and a most happy coincidence for [him],

that the Library – so much an institution which has long been a staunch pillar of

freedom, should celebrate its birthday on the very day which the Nation sets

aside for recognition of the Rule of Law and its contributions to liberty.”

Brennan, Law, liberty & libraries, 88 Library J 2417, 2417 (1963). His speech

eloquently cataloged the irreplaceable value libraries have in a free and educated

society. Like me and scores of others, Justice Brennan understood that “[o]ne of

the liberties we Americans prize most highly is our freedom to read what we wish

and when we wish.” Id. at 2418.

While the doors of Michigan libraries remain physically open, the

majority tramples the intent of our people by misinterpreting the law to the severe

disadvantage of those who wish to educate themselves. As plaintiff queried,

“Given the universal understanding that our libraries and their books exist to help

us become better educated and more successful and informed citizens, one

28

wonders why defendant seeks to make the books of our public libraries less

available to the people, not more.” One wonders this same thing about the

majority.

Milton E. Higgs, one of 144 candidates elected to serve as a delegate to

the Michigan constitutional convention, is no less emphatic today than he was 45

years ago that the purpose of the constitutional amendment was to fully open

public libraries to the citizens regardless of residency, and that this included the

right to borrow books. Mr. Higgs states:

[T]he delegates considered and understood the impact of clear
and unambiguous words being imbedded in the Constitution which
would, as a matter of law, be binding on the Legislature and the
Courts prohibiting abrogation of the right of all residents of this
State pursuant to reasonable regulations to have access and borrow
books from any “public” library in the spirit of ANDREW
CARNEGIE who said, “THERE IS NOT SUCH A CRADLE OF
DEMOCRACY UPON THE EARTH AS THE FREE PUBLIC
LIBRARY, THIS REPUBLIC OF LETTERS, WHERE NEITHER
RANK, OFFICE, NOR WEALTH RECEIVES THE SLIGHTEST
CONSIDERATION.” [Affidavit of Milton E. Higgs, May 25,
2006.]
Michigan citizens are poorer after today’s decision. Accordingly, I

dissent.14

14
Because this issue can be resolved by properly interpreting the
constitutional language, I would not reach the questions whether defendant’s
practices violate plaintiff’s rights to due process or equal protection.

29

 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly

30

 STATE OF MICHIGAN

SUPREME COURT

GEORGE H. GOLDSTONE,

Plaintiff-Appellant,

v No. 130150

BLOOMFIELD TOWNSHIP PUBLIC
LIBRARY,

Defendant-Appellee.

WEAVER, J. (dissenting).

I concur fully with Justice Cavanagh’s dissent, which thoroughly exposes

the perversely unrestrained misinterpretation of the phrase “available to all

residents of the state” within Const 1963, art 8, § 9 by the majority of four, Chief

Justice Taylor and Justices Corrigan, Young, and Markman. The majority’s

skewed interpretation of that phrase denies all the people of Michigan their

constitutional right to full and equal use of libraries.

Libraries are vitally important institutions in a democracy. The people of

Michigan adopted a constitutional provision that expressly guarantees that all

residents of Michigan have access to libraries. Const 1963, art 8, § 9 states:

The legislature shall provide by law for the establishment and
support of public libraries which shall be available to all residents of
the state under regulations adopted by the governing bodies thereof.
All fines assessed and collected in the several counties, townships
and cities for any breach of the penal laws shall be exclusively
 applied to the support of such public libraries, and county law
libraries as provided by law. [Emphasis added.]

Thomas Jefferson stated, in notably similar language to Const 1963, art 8,

§ 9:

I have often thought that nothing would do more extensive
good at small expense than the establishment of a small circulating
library in every county, to consist of a few well chosen books, to be
lent to the people of the country under such regulations as would
secure their safe return in due time. [Letter from Thomas Jefferson
to John Wyche, May 19, 1809.]

A learned public is essential to a democracy. In explaining the importance

of the availability of books, Thomas Jefferson further stated:

Books constitute capital. A library book lasts as long as a
house, for hundreds of years. It is not then an article of mere
consumption but fairly of capital, and often in the case of
professional men, setting out in life, it is their only capital. [Letter
from Thomas Jefferson to former President James Madison, Sept.

16, 1821.]

Libraries ensure that information is available to all people, not only to the

privileged. An essential function of a library is to provide the public with

equitable access to information. The people of Michigan, through the Michigan

Constitution, have declared that equitable access to libraries is something that they

desire as a society to promote a democratic government in Michigan. The

Michigan Constitution of 1908 stated that a library should be established in every

township in Michigan. Const 1908, art 11, § 14. This goal proved to be financially

unfeasible, especially for many of the small townships, and the constitutional

provision was never strictly enforced. When the 1963 constitution was being

2

drafted, due concern was given to the importance of constitutionally established

libraries and their importance to the people of Michigan.

The key to the proper and restrained interpretation of “available to all

residents of the state” by this Court is to determine what the ratifiers of the

constitution, the people, believed “shall be available to all residents of the state”

meant when they agreed to give up their right to a library guaranteed in every

township under the old constitution. As Justice Cavanagh aptly points out, the

people of Michigan believed (as indicated by the common understanding of

“available to all residents of the state” and by the extensive, thorough

constitutional convention debates) that they were giving up their constitutional

right to have a library in every township because they were corollarily ensuring

access to libraries to all residents of the state. However the majority of four

admits that its decision today leaves entire pockets of the Michigan community

without access to any library whatsoever.1 The majority of four’s decision today

is not only unconstitutional, it also lacks common sense.

1
Ante at 12. The majority states:

Indeed, it appears from statistics offered by the Michigan
Department of History, Arts, and Libraries that less than 1/5 of 1
percent of the population of Michigan does not have a public library
available either directly through their communities or through a
cooperative agreement.10
_______________________________________________________

(continued…)

3

 The majority of four’s unrestrained and mistaken decision directly

contradicts the intent of the ratifiers of the constitution and is unconstitutional

because it divests the people of Michigan of their constitutionally promised right

to full access to libraries.

The decision today is another example of the majority of four’s misuse of

the power of interpretation to create policy and law, taking away the rights of the

people of Michigan and denying them justice in this Supreme Court. It is yet

another example of judicial activism by the majority of four. See also Herald Co v

Eastern Michigan Univ Bd of Regents, 475 Mich 463; 719 NW2d 19 (2006)

(eroding rights under the Michigan Freedom of Information Act); Kreiner v

Fischer, 471 Mich 109; 683 NW2d 611 (2004) (reducing no-fault insurance

rights); Maldonado v Ford Motor Co, 476 Mich 372; 719 NW2d 809 (2006)

(preventing trial by jury); Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685

(…continued)
10
The department asserts that there are only 21 townships in
Michigan with a population totaling 17,055 that do not have a
library and that do not contract with another city or township for
library services. Inexplicably, the department does not indicate
how many cities are similarly lacking. Although we cannot imagine
that this figure is very high, Bloomfield Hills obviously is one such
city.

The majority admits that all the residents of the city of Bloomfield Hills
will be left without library access, and further admits that there may be similarly
situated residents across the state who will also be divested of their library access.
Inexplicably, the majority brushes off the impact on these residents and cavalierly
(continued…)

4

NW2d 391 (2004) (overturning accountability for sexual harassment in the

workplace); and Michigan Citizens for Water Conservation v Nestlé Waters North

America Inc, 479 Mich ___; __ NW2d ___ (Docket Nos. 130802, 130803,

decided July 25, 2007) (reducing the rights of every citizen to protect the

environment by suit under the Michigan Environmental Protection Act).

Elizabeth A. Weaver

(…continued)

continues to proclaim that the majority opinion upholds the constitutional mandate

to ensure that libraries “shall be available to all residents of the state.”

5