Michigan United Conservation Clubs v. Secretary of State

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	



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

                                                                                      FILED JUNE 29, 2001





                MICHIGAN UNITED CONSERVATION

                CLUBS, MICHIGAN COALITION FOR

                RESPONSIBLE GUN OWNERS, ROSS

                DYKMAN, DAVID K. FELBECK, and

                CORRIE WILLIAMS,


                        Plaintiffs-Appellants,


                v	                                                                             No.          119274


                SECRETARY OF STATE and STATE

                BOARD OF CANVASSERS,


                        Defendants-Appellees,


                and


                PEOPLE WHO CARE ABOUT KIDS,


                        Intervening

                        Defendant-Appellee.




                BEFORE THE ENTIRE BENCH

                TAYLOR, J.

                        The issue here is whether 2000 Public Act 381 is exempt


                from the power of referendum of the Michigan Constitution.

                Having granted leave to appeal and heard oral argument, this


                Court finds as follows:

     (1) The power of referendum of the Michigan Constitution


“does not extend to acts making appropriations for state


institutions . . . .”     Const 1963, art 2, § 9.


     (2)   2000 PA 381 states that “one million dollars is


appropriated from the general fund to the department of state


police . . . .”     MCL 28.425w(1).


     (3)       An     appropriation    of   $1,000,000    is    an


“appropriation,” and the Department of State Police is a


“state institution.”


     (4)   Therefore, the power of referendum of the Michigan


Constitution does not extend to 2000 PA 381.

     Accordingly, consistent with Const 1963, art 2, § 9 and

an unbroken line of decisions of this Court interpreting that


provision,1 the Court of Appeals is reversed, and the relief

sought in the complaint for mandamus is granted.      The May 21,

2001 declaration by the Board of State Canvassers of the


sufficiency of the petition for referendum on 2000 PA 381 is

vacated and defendant Secretary of State and the Board of

State Canvassers are directed that 2000 PA 381 is not subject

to referendum for the reasons set forth herein.

     Pursuant to MCR 7.317(C)(4), the clerk is directed to


issue the judgment order in this case forthwith.

     CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with



     1
       Co Rd Ass’n v Bd of State Canvassers, 407 Mich 101; 282

NW2d 774 (1979); Co Rd Comm’rs v Bd of State Canvassers, 391

Mich 666; 218 NW2d 144 (1974); Good Roads Federation v State

Bd of Canvassers, 333 Mich 352; 53 NW2d 481 (1952); Moreton v

Secretary of State, 240 Mich 584; 216 NW 450 (1927); Detroit

Automobile Club v Secretary of State, 230 Mich 623; 203 NW 529

(1925).

                                2

TAYLOR, J.





              3
                   S T A T E     O F     M I C H I G A N


                               SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,


v                                                               No.   119274

SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,

       Defendants-Appellees,

and


PEOPLE WHO CARE ABOUT KIDS,

       Intervening

       Defendant-Appellee.




CORRIGAN, C.J. (concurring).


       I concur in the result and reasoning of the majority

opinion.     I write to emphasize that the intervening defendant


retains a direct remedy, the initiative process.                  Under our


state constitution, this remedy is available even when the


Legislature has made an appropriation to a state institution.


       I    also   wish   to    emphasize       that   the    Legislature’s


subjective motivation for making a $1,000,000 appropriation in


2000 PA 381—assuming one can be accurately identified1—is


       1

            The    parties     and     amicus    curiae      have asserted

                                                             (continued...)

irrelevant.        Intervening defendant contends that despite the


appropriation in 2000 PA 381 and the plain language of Const


1963, art 2, § 9, the act is subject to the referendum process


because the “purpose” of the appropriation, as purportedly


revealed      by    the    legislative      history,   was   to   evade    a


referendum.         This argument is misplaced.          This Court has


repeatedly held that courts must not be concerned with the


alleged motives of a legislative body in enacting a law, but


only       with    the    end   result—the    actual   language    of     the


legislation. See Kuhn v Dep’t of Treasury, 384 Mich 378, 383­

384; 183 NW2d 796 (1971); C F Smith Co v Fitzgerald, 270 Mich

659, 681; 259 NW 352 (1935); People v Gibbs, 186 Mich 127,

134-135; 152 NW 1053 (1915).


       Our cases follow Justice Cooley’s powerful exposition of

this doctrine in his seminal work on constitutional law.                   It

is as persuasive to us as it was to our predecessors:


            The validity of legislation can never be made

       to depend on the motives which have secured its

       adoption, whether these be public or personal,

       honest or corrupt. There is ample reason for this

       in the fact that the people have set no authority

       over the legislators with jurisdiction to inquire

       into their conduct, and to judge what have been

       their purposes in the pretended discharge of the

       legislative trust.   This is a jurisdiction which

       they have reserved to themselves exclusively, and

       they have appointed frequent elections as the

       occasions and the means for bringing these agents


       1
      (...continued)

contradictory positions regarding the legislative motive for

the appropriation in 2000 PA 381. It is a dubious proposition

to suggest that a legislative body comprised of individual

persons can have a single motivation for enacting any piece of

legislation.    Even assuming that such a motive could be

ascertained, there is no testimonial record in this original

action.   Accordingly, we have no means by which to decide

these disputed claims regarding legislative motivation.


                                       2

to account.    A further reason is, that to make

legislation depend upon motives would render all

statute law uncertain, and the rule which should

allow it could not logically stop short of

permitting a similar inquiry into the motives of

those who passed judgment. Therefore the courts do

not permit a question of improper legislative

motives to be raised, but they will in every

instance assume that the motives were public and

befitting the station. They will also assume that

the legislature had before it any evidence

necessary to enable it to take the action it did

take. [Cooley, Constitutional Law, pp 154-155.]





                        3

                S T A T E    O F   M I C H I G A N


                            SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,

v                                                       No. 119274

SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,

       Defendants-Appellees,


and

PEOPLE WHO CARE ABOUT KIDS,

     Intervening

     Defendant-Appellee.

___________________________________

YOUNG, J. (concurring).


       I join and fully concur in the admirably concise majority

opinion.    I write separately to provide the rationale and


analysis for my conclusion that 2000 PA 381 is exempt from the


referendum power of art 2, § 9 of our 1963 state constitution


and why I take exception to the constitutional exegesis


offered by my dissenting colleagues.



                  I.   THE QUESTION BEFORE THE COURT

      There is no gainsaying that 2000 PA 381 has become the


focus of a heated debate among various segments of Michigan’s


citizens; Justice Cavanagh’s dissent is generous in providing


his own extensive personal views on the public controversy


surrounding 2000 PA 381.      However important, this political


issue–the merits or demerits of the underlying act–is not


before this Court.    The sole question we are to decide in this


case is a legal one: Is 2000 PA 381 subject to the referral


process under the provisions of art 2, § 9?           If it is, 2000 PA


381   will   not   become   effective       until    the   next   general


election–if a majority of the voters then approve it.                Const

1963, art 2, § 9; MCL 168.477(2).       If the stated limitation on

the people’s referral power contained in art 2, § 9 applies,


the act is not subject to the referendum process at all.


               II.   FACTUAL AND PROCEDURAL BACKGROUND

      In December 2000, the Legislature enacted 2000 PA 381,

MCL 28.421 et seq., which modifies the standards for the


issuance of concealed weapons permits.          The effective date of


the law is July 1, 2001. 

      Intervening    defendant   is     a    group    that   filed    with


defendants Secretary of State and Board of State Canvassers a


petition, signed by approximately 260,000 Michigan voters,1


      1
      According to a letter written by Christopher Thomas,

Director of Elections for the Department of State, an

effective   referendum   petition   requires  151,136   valid

signatures (comprising five percent of voters in the last

gubernatorial election).    Approximately 260,000 signatures

appear on the petition filed by defendants. Once the Board of

Elections has declared the sufficiency of a referendum

petition, the effectiveness of the law that is the subject of

                                               (continued...)

                                 2

requesting a referendum on the new law. Although the Board of


Canvassers    initially,   by    a     two-to-two        vote,       declined   to


certify the petition on the basis that the law may not be


subject to referendum, on May 21, 2001, the board certified


the   petition.        Approximately           230,000       valid    signatures

supported     the   petition     (80,000         more        than    the   number

required).2

      On March 23, 2001, plaintiffs–two organizations that


lobbied for the law and three individuals who want to apply


for concealed weapons permits–filed a complaint for mandamus


in the Court of Appeals, seeking to prevent the Board of State

Canvassers from proceeding with the canvass of the petitions.

Plaintiffs    argued    that    2000      PA    381     is    not    subject    to


referendum because it contains an appropriation to a state

institution, the Department of State Police, and the Michigan

Constitution provides that “[t]he power of referendum does not


extend to acts making appropriations for state institutions

. . . .”     Const 1963, art 2, § 9. 

      As stated, plaintiffs contended that two provisions in


2000 PA 381 make appropriations for a state institution within



      1
      (...continued)

the petition is suspended until a vote at the next general

election, November 2002 in this case. Const 1963, art 2, § 9;

MCL 168.477(2).

      2
      On May 16, 2001, intervening defendant filed its own

mandamus action, asking the Court of Appeals to require the

Board of Canvassers to certify the petition. However, the

Court of Appeals opinion in the instant case was issued on the

same day, just before the filing of intervening defendant’s

complaint. After the Board of Canvassers met for a second

time and voted to certify the petition, the parties informed

the Court of Appeals that the second mandamus action was moot.

                                     3

the meaning of art 9, § 2.       The first, § 5v of the act, (1)


creates a concealed weapon enforcement fund in the state


treasury, (2) allows the state treasurer to receive money or


other assets from any source for deposit into the fund and to


direct the investment of the fund, (3) provides that money in


the fund at the close of the fiscal year shall remain in the


fund and not lapse to the general fund, and (4) directs the


Department     of   State   Police        to   expend   money   from   the


enforcement fund only to provide training to law enforcement


personnel in connection with the act.3           The second, § 5w(1) of


the act, provides that “[o]ne million dollars is appropriated

from the general fund to the department of state police for

the fiscal year ending September 30, 2001" for such activities


as distributing free safety devices to the public and creating

and maintaining a database of individuals applying for a

concealed weapons license.4


     3
         MCL 28.425v.

     4
         MCL 28.425w(1) provides:


          One million dollars is appropriated from the

     general fund to the department of state police for

     the fiscal year ending September 30, 2001 for all

     of the following:


          (a) Distributing trigger locks or other safety

     devices for firearms to the public free of charge.


          (b) Providing concealed pistol application

     kits to county sheriffs, local police agencies, and

     county clerks for distribution under section 5.


          (c) The fingerprint analysis and comparison

     reports required under section 5b(11).


             (d) Photographs required under section 5c.

                                                          (continued...)

                                     4

Plaintiffs further argued that defendants Secretary of State


and the Board of Canvassers had a threshold duty to determine


whether the petition on its face meets the constitutional


prerequisites for acceptance and canvassing, and that, until


this determination was made, canvassing should cease.


     In an order dated April 9, 2001, the Court of Appeals


granted People Who Care About Kids permission to intervene and


accepted the amicus curiae brief of the Michigan Association


of Chiefs of Police.      The panel then dismissed plaintiffs’


complaint for mandamus, holding–on a ground not raised by the


parties–that

     the   matter  is   not  ripe  for  this  Court’s

     consideration. The Board of State Canvassers has

     not completed its canvass of the referendum

     petitions.   MCL 168.479.[5]


     4
      (...continued)

          (e) Creating and maintaining       the   database

     required under section 5e.

          (f) Creating and maintaining a database of

     firearms that have been reported lost or stolen.

     . . .

          (g)   Grants  to   county  concealed   weapon

     licensing boards for expenditure only to implement

     this act.


             (h) Training under section 5v(4).


          (i) Creating and distributing the reporting

     forms required under section 5m.


          (j) A public safety campaign regarding the

     requirements of this act. 

     5
         MCL 168.479 provides:


          [a]ny person or persons, feeling themselves

     aggrieved by any determination made by said board,

     may have such determination reviewed by mandamus,

     certiorari, or other appropriate remedy in the

                                         (continued...)

                              5

     On plaintiffs’ application for leave to appeal, this


Court remanded the matter to the Court of Appeals for plenary


consideration of the complaint for mandamus.6                463 Mich 1007­

1008 (2001).


     On     remand,    the   Court   of     Appeals    denied    plaintiffs’


request for mandamus, holding that “2000 PA 381 is not an act


making appropriations for state institutions as contemplated


by Const 1963, art 2, § 9,” and that it therefore was subject


to referendum.        246 Mich App ___; ___ NW2d ___ (2001).

     We granted plaintiffs’ application for leave to appeal

from the decision of the Court of Appeals.                      464 Mich ___


(2001).7


          III.   CONTROLLING RULES   OF   CONSTITUTIONAL CONSTRUCTION

     Of preeminent importance in addressing the matter at hand

is an understanding of the particularized rules of textual


construction that apply to constitutional provisions.                    “Each


     5
      (...continued)

     supreme court. 

     6
         We stated in our remand order that 


     [t]his controversy is ripe for review because it is

     not dependent upon the Board of Canvassers’

     counting or consideration of the petitions but

     rather involves a threshold determination whether

     the petitions on their face meet the constitutional

     prerequisites for acceptance. . . .     All of the

     information necessary to resolve this controversy,

     i.e., whether 2000 PA 381 constitutes a law which

     is excepted from the referendum process under Const

     1963, art 2, § 9, is presently available.

     7
      We indicated in our grant order that the only issue for

our consideration was “whether 2000 PA 381 is an act making an

appropriation for a state institution for the purposes of

Const 1963, art 2, § 9.”

                                      6

provision of a State Constitution is the direct word of the


people of the State, not that of the scriveners thereof,”


Lockwood v Nims, 357 Mich 517, 565; 98 NW2d 753 (1959) (BLACK ,

J., concurring), and therefore “[w]e must never forget that it


is a Constitution we are expounding,” id., quoting McCulloch


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


     Our   primary   goal    in   construing   a   constitutional


provision–in marked contrast to a statute or other texts–is to


give effect to the intent of the people of the state of


Michigan who ratified the constitution, by applying the rule


of “common understanding.”    Recently, in People v Bulger, 462

Mich 495, 507; 614 NW2d 103 (2000), we explained the rule of

common understanding:


          In construing our constitution, this Court’s

     object is to give effect to the intent of the

     people adopting it. . . . “Hence, the primary

     source for ascertaining its meaning is to examine

     its plain meaning as understood by its ratifiers at

     the time of its adoption.”     [Citations omitted;

     emphasis supplied.]

     I agree with Justice Cavanagh’s reliance on Justice

COOLEY ’s explanation of the rule of “common understanding”: 


          A constitution is made for the people and by

     the people.    The interpretation that should be

     given it is that which reasonable minds, the great

     mass of the people themselves, would give it. “For

     as the Constitution does not derive its force from

     the convention which framed, but from the people

     who ratified it, the intent to be arrived at is

     that of the people, and it is not to be supposed

     that they have looked for any dark or abstruse

     meaning in the words employed, but rather that they

     have accepted them in the sense most obvious to the

     common understanding, and ratified the instrument

     in the belief that that was the sense designed to

     be conveyed.”     [Federated Publications, Inc v

     Michigan State Univ Bd of Trustees, 460 Mich 75,

     85; 594 NW2d 491 (1999), quoting 1 Cooley,

     Constitutional Limitations (6th ed), p 81 (emphasis

                                  7

     added).]


See also American Axle & Mfg, Inc v Hamtramck, 461 Mich 352,


362; 604 NW2d 330 (2000); Highway Comm v Vanderkloot, 392 Mich


159, 179; 220 NW2d 416 (1974); Traverse City Sch Dist v


Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971);


Michigan Farm Bureau v Secretary of State, 379 Mich 387, 391;


151 NW2d 797 (1967); Lockwood, supra at 569. 


     As expounded by Justice COOLEY and this Court, the “common

understanding” principle of construction is essentially a


search for the original meaning attributed to the words of the


constitution    by   those   who   ratified   it.   This   rule   of

construction acknowledges the possibility that a provision of

the constitution may rationally bear multiple meanings, but


the rule is concerned with ascertaining and giving effect only

to the construction, consistent with the language, that the

ratifiers intended.     Thus, our task is not to impose on the


constitutional text at issue here the meaning we as judges

would prefer, or even the meaning the people of Michigan today

would prefer, but to search for contextual clues about what


meaning the people who ratified the text in 1963 gave to it.

     Our analysis, of course, must begin with an examination


of the precise language used in art 2, § 9 of our 1963


Constitution.    See American Axle, supra at 362.      Art 2, § 9


provides, in relevant part:


          The people reserve to themselves the power to

     propose laws and to enact and reject laws, called

     the initiative, and the power to approve or reject

     laws enacted by the legislature, called the

     referendum. The power of initiative extends only

     to laws which the legislature may enact under this

     constitution.   The power of referendum does not

                                   8

     extend to acts making appropriations for state

     institutions or to meet deficiencies in state funds

     and must be invoked in the manner prescribed by law

     within 90 days following the final adjournment of

     the legislative session at which the law was

     enacted. To invoke the initiative or referendum,

     petitions signed by a number of registered

     electors,   not  less   than   eight  percent   for

     initiative and five percent for referendum of the

     total vote cast for all candidates for governor at

     the last preceding general election at which a

     governor was elected shall be required.


          No law as to which the power of referendum

     properly has been invoked shall be effective

     thereafter unless approved by a majority of the

     electors voting thereon at the next general

     election. [Emphasis supplied.]

     As is apparent from the text of art 2, § 9, the people’s

right of referral is expressly limited.                  The limitation


relevant here is the first: There is no right of referral for

“acts making appropriations for state institutions.” There is

no dispute here that the Department of State Police is a


“state institution” within the meaning of art 2, § 9.             Nor is

there any dispute that 2000 PA 381 “allocated” one million

dollars    of    public    funds      to   the       state   police   for


responsibilities that the act requires the state police to


perform.    The contested issue is whether the million-dollar

allocation made in 2000 PA 381 constitutes an “appropriation”


within the meaning of art 2, § 9.



                               IV.    APPLICATION


         A. WAS THE COMMON UNDERSTANDING OF THE ARTICLE 2, SECTION 9

LIMITATION ON THE RIGHT OF REFERRAL AT THE TIME OF RATIFICATION DIFFERENT

                 FROM THE PLAIN MEANING OF THE LANGUAGE ?


     The majority construes the language of art 2, § 9 in a


plain and natural manner. Thus, it concludes that 2000 PA 381

is an act making an appropriation to a state institution and

                                     9

is thus exempt from the referral power.   To read the limiting


language of art 2, § 9 in any other manner would incorporate


into that constitutional provision a meaning that is not


apparent on its face.    Accordingly, unless we are able to


determine that this provision had some other particularized


meaning in the collective mind of the 1963 electorate, we must


give the effect to the natural meaning of the language used in


the constitution.


     Justice Cavanagh asserts that the common understanding of


art 2, § 9 is different from the plain meaning given to this


constitutional provision by the majority.   Those who suggest

that the meaning to be given a provision of our constitution

varies from a natural reading of the constitutional text bear


the burden of providing the evidence that the ratifiers

subscribed to such an alternative construction.    Otherwise,

the constitution becomes no more than a Rorschach8 exercise in

which judges project and impose their personal views of what

the constitution should have said.9


     8
      A Rorschach test is a personality and intelligence test

that requires a subject to “interpret” inkblots. Webster’s

New Collegiate Dictionary, 1977, p 1006.

     9
      The difference between my approach and that of the

dissents is that I believe I have an obligation to establish

from available historical evidence whether the “common

understanding” diverged from the plain meaning of the language

in the constitution.     Because the dissents offer no such

proofs, and presumably believe them to be unnecessary, it

appears that the dissents believe that they can “intuit” the

common understanding they prefer.       Given their intuited

conclusion about the people’s understanding, the dissents

ignore the art 2, § 9 limitation on the power of referral.

Justice Cavanagh’s dissent concludes that the limitation, if

given effect, could not have been intended by the people

because it causes a “constitutional invalidity.” Slip op p 9.

                                                (continued...)

                             10

     Interestingly, no one–not the dissents, the parties, or


even the amici curiae–has attempted to provide a scintilla of


historically based evidence that provides support for the


belief that in 1963 the people of this state understood the


limiting language of art 2, § 9 to mean something other than


what it naturally and plainly says.         The reason for this


omission is simple: There is not much historical background on


the provision to report in the first instance. Moreover, that


which exists fails to demonstrate that the people attributed


a meaning other than the construction the majority gives to


art 2, § 9. 

     Within the limited time constraints occasioned by the

exigencies of having to decide this case by the July 1, 2001,


effective date of 2000 PA 381, we have searched for evidence

that the common    understanding is that proposed by Justice

Cavanagh.   We have found no such historical evidence in the


record of the constitutional convention, at the time of our

constitution’s    ratification,   or   in   contemporaneous   news

articles that provide support for the dissent’s asserted


“special” common understanding of art 2, § 9. 

     Indeed, one might expect that the framers of our 1963


Constitution–the participants of the constitutional convention


that drafted the constitutional text that was eventually


ratified–would have provided some gloss on or construction of



     9
      (...continued)

This is pure tautological reasoning.    A constitutional

provision that contains its own limitation cannot be

“invalidated” when one gives the limitation its natural

import.

                              11

the intended meaning of the art 2, § 9 limitation on the right


of referral.       In point of fact, the framers provided none. 


     Surprisingly,        during       the     entire       constitutional


convention,    excepting        references      to    the     convention’s


successive procedural approvals of the provision at issue, the


framers    never    discussed    the   substance      of    art   2,   §    9.10


Especially important, nothing in the convention record has any


bearing on what the framers, much less the public, “commonly


understood” about the limitation on the referral power created


by   the    constitutional       language      selected–“acts          making


appropriations for state institutions.”

     Particularly noteworthy in this regard is the “Address to

the People” accompanying Const 1963, art 2, § 9. The address,


officially approved by the members of the constitutional

convention,    provides    the     text   of   each   provision        of   the

proposed constitution the people ratified in 1963 and a


commentary, written in simple language, explaining the import

of each provision and any changes the proposed constitution

made to comparable provision of the 1908 constitution.                      That


address was widely distributed to the public before the

ratification vote.11      The address was intended as a vehicle to



     10
      See 1 Official Record, Constitutional Convention 1961,

p 758; 2 Official Record, Constitutional Convention 1961, pp

2390-2392, 2418, 2779, 2927-2928, 

     11
      Because the “Address to the People,” or “Convention

Comments,” constitutes an authoritative description of what

the framers thought the proposed constitution provided, this

document is a valuable tool in determining whether a possible

“common understanding” diverges from the plain meaning of the

actual words of our constitution. See Regents of the Univ of

                                               (continued...)

                                    12

educate the public about the proposed constitution. 


      Significantly,      in     the   “Address        to        the   People”


accompanying Const 1963, art 2, § 9, the framers advise the


people that this provision constitutes only a “revision” of


Const 1908, art 5, § 1, and that the revision “eliminat[es]


much language of a purely statutory character.”                    2 Official


Record, p 3367.     The address also notes that the revision


“specifically reserves the initiative and referendum powers to


the people [and] limits them as noted . . . .”12                 Id. (emphasis


added).    There is no further reference to the art 2, § 9


“limits” on the power of referral or any explanation regarding

how those limitations were expected to function in practice.

      Thus, the 1963 constitutional record provides no basis


for   concluding   that   the    people       were   led    to    believe   (or

actually   entertained     the    notion)       that   the       art   2,   §   9

limitation    on    the        right     of     referral–“acts          making


appropriations for state institutions”–meant or was intended

to mean anything other than what it plainly says.                  Similarly,



      11
      (...continued)

Mich v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975) (“[t]he

reliability of the ‘Address to the People’ . . . lies in the

fact that it was approved by the general convention . . . as

an explanation of the proposed constitution. The ‘Address’

also was widely disseminated prior to adoption of the

constitution by vote of the people”). 

      12
      Equally of interest is the actual language of the two

limitations of art 2, § 9 on the power of referral. The

first   precludes   referrals    concerning   “acts   making

appropriations to state institutions” while the second

precludes referrals concerning acts addressing “deficiencies

in state funds.”   Other than the meaning suggested by the

words of the clause itself, we have no greater understanding

of what the framers, much less the people, understood the

second limitation to mean than we do of the first.

                                   13

I have been unable to locate (and no one has provided to the


Court) any contemporaneous news articles or other documents


circulated in the public domain that suggest that the public


in 1963 had a specific or “common” understanding of art 2, §


9 that diverged from the natural and plain meaning of its


text.13


      The absence of any evidence from the 1963 constitutional


convention record or other contemporaneous articles in the


public domain suggesting support for some kind of special


“common understanding” about art 2, § 9 consistent with the


dissents’ view (or any other) ought to be conclusive.             In the

absence of evidence on this point, this Court should accord

the language in question its natural, plain meaning. 


         B. JUSTICE CAVANAGH ’S ASSERTED “COMMON UNDERSTANDING ” THAT

“APPROPRIATIONS ” MEANS “GENERAL APPROPRIATIONS ” IS ALSO AT VARIANCE WITH

                     THE STRUCTURE OF THE CONSTITUTION



     13
      While   in   1963  the   question   of  government   by

plebiscite–direct action by the citizens through initiative

and referendum as opposed to indirect action through their

elected representatives–was a commonplace fact of American

political life, in 1913, this was still a startlingly radical

proposition and one rarely embodied in state constitutions of

the era.   In 1913, only a dozen or so states recognized a

popular right of referendum and initiative.      Detroit Free

Press, March 22, 1913. 


     The public record concerning the 1913 amendment that

incorporated the precursor of art 2, § 9 into the 1908

constitution also fails to establish that the people then

understood the “acts making appropriations” limitation to mean

something other than what the language plainly suggests. We

have been unable to locate from any source the actual 1913

amendment ballot language approved. Neither the Detroit Free

Press nor The Detroit News Tribune did more than respectively

advocate the rejection or adoption of the amendment. See,

e.g., Detroit Free Press, March 22, 1913; The Detroit News

Tribune, March 18, 1913. We have found no historical basis

even for a “vicarious” common understanding of the kind

asserted by Justice Cavanagh grounded in the ratification of

the 1913 amendment. 

                                   14

     Lacking any evidence that the citizens believed they were


ratifying a provision that meant something quite different


from that of the plain language of art 2, § 9, Justice


Cavanagh nevertheless presumes that this must have been the


case.       He is able to so conclude because he is convinced that


the natural construction the majority gives to art 2, § 9


produces an “absurd result”:14


             I am confident that the constitutional right

        of referendum, in this narrow context, should not

        be taken away by so transparent an artifice.

        Justice COOLEY ’s “great mass of the people” would,

        if asked, surely suppose that “acts making

        appropriations for state institutions,” which deny

        the people’s reserved power of referendum, are

        general appropriations bills containing substantial

        grants to state agencies. Those grants would have

        to ensure the viability of the agencies, or, as the

        Court of Appeals put it, support the agencies’

        “core functions.” 246 Mich App ___; ___ NW2d ___

        (2001).   The people of Michigan, I am certain,

        never intended to authorize the 2000 lame duck

        Legislature’s legerdemain. [Slip op at 9.][15]

        I    believe     that   Justice     Cavanagh’s     presumption      is


unfounded because (1) it is not grounded in an assessment of

what the voters in 1963 understood art 2, § 9 to mean, and (2)

it does not give sufficient weight or meaning to the expressly


stated       competing     language   and     values     embodied     in    our

constitution       or     the   differences     between     the     power   of


initiative and referral. 


     14
      In a different context in which this Court was

construing a statute, we rejected the “absurd result” mode of

construction. People v McIntire, 461 Mich 147, 155-160; 599

NW2d 102 (1999). 

     15
      Justice Cavanagh also suggests that acts making grants

that “ensure the viability of [state] agencies” or grants that

“support the agencies’ ‘core’ functions” would also preclude

a referendum. Of course, Const 1963, art 2, § 9 contains no

textual support for either of the two tests.

                                      15

      In   this    regard,       it    is    important      to   consider     the


relationship between the constitutional power accorded to the


Legislature, Const 1963, art 4, § 1, and the specific means


chosen in the initiative and referendum provisions that check


the power of the Legislature.16               Without question, art 4, § 1


gives the Legislature plenary power to enact laws for the


benefit of Michigan citizens.                 Equally clearly, art 2, § 9


provides    a     means    for        citizens      directly     to   challenge


Legislative action or inaction. I believe that it is a matter


of   constitutional       significance        that    the   initiative      power


contains no limitation (save procedural requirements such as

those concerning when the initiative process can be commenced

and the number of people who must support it), but that the


referendum power is expressly limited by two substantive

restrictions–an exception             to the power of referral for acts

“making    appropriations         for       state    institutions,”     and    an


exception for those acts enacted to “meet deficiencies in

state funds.”17

      Stated otherwise (leaving aside momentarily the question




      16
      “The legislative power of the State of Michigan is

vested in a senate and a house of representatives.” Const

1963, art 4, § 1.

      17
      As noted, the current provision carries forward the

language of Const 1908, art 5, § 1, that the referendum power

does not extend to “acts making appropriations for state

institutions and to meet deficiencies in state funds.” Art 2,

§ 9 uses the disjunctive “or” between the two categories of

nonreferable items, as opposed to the conjunctive “and” in the

art 5, § 1 version of the provision in the 1908 constitution.

We need not speculate about the possible meaning of this word

change, because our only concern in this matter is with

respect to the first limitation category.

                                        16

of what the people understood in 1963 the art 2, § 9 term


“appropriations” meant), it appears unchallenged that “acts


making appropriations” are always subject to nullification by


initiative, but such acts are exempted from the referral


power.    Because exercise of both the referral and initiative


powers may result in the nullification of a law enacted by the


Legislature, one may well ask: Why, when the people enacted


two provisions that are clearly intended as checks on the


constitutional power of the Legislature, would the people

substantially limit their power of referral, but not their


power of initiative?         Based upon the structure of these

provisions, the answer appears obvious that the people feared

more     the     circumstance   of     preventing     acts    involving


“appropriations” from becoming law (the referral power) than

they feared a nullification vote on the very same bill after

it became effective. Otherwise they would not have imposed an


exception to their power of referral.

       Justice    Cavanagh   asserts    that   the    “appropriations”

limitation on the people’s referral power could only have been

intended to mean “general appropriations bills containing

substantial grants to state agencies.”               Slip op at 9.     I


question why that conclusion is justified, particularly given


that even the dissent notes the framers’ drafting precision


concerning matters involving the general budget. See slip op,


pp 7-8. I wholeheartedly agree with Justice Cavanagh that the


framers    intended     to   improve    and    increase      legislative


accountability for legislative general budgeting processes and

were very precise in their draftsmanship to accomplish this

                                 17

goal.       See,     e.g.,    Const    1963,    art     4,     §    31     (general


appropriation        bills,    priority,       statement           of     estimated


revenue).18        Justice    Cavanagh       assumes,    without          providing


support,      that    the     people    believed        that       only     general


appropriation acts were referenced in art 2, § 9.


     Concerning art 4, § 31, in the Address to the People the


framers advised: 


             This is a new section designed to accomplish

        two major purposes:


             1.	     To focus legislative attention on the

                     general appropriation bill or bills to

                     the exclusion of any other appropriation

                     bills,   except    those   supplementing

                     appropriations for the current year’s

                     operation.

             2.	     To require the legislature (as well as

                     the governor by a subsequent provision)

                     to set forth by major item its own best

                     estimates of revenue.


             The  legislature    frequently    differs   from

        executive estimates of revenue.     It is proper to

        require  that   such   differences    as   exist   be

        specifically set forth for public understanding and

        future judgment as to the validity of each. [2

        Official Record, p 3375.]


     18
          Const 1963, art 4, § 31 provides:

     The general appropriation bills for the succeeding

fiscal period covering items set forth in the budget

shall be passed or rejected in either house of the

legislature before that house passes any appropriation

bill for items not in the budget except bills

supplementing appropriations for the current fiscal

year’s operation. Any bill requiring an appropriation to

carry   out   its  purpose   shall   be   considered   an

appropriation bill.    One of the general appropriation

bills as passed by the legislature shall contain an

itemized statement of estimated revenue by major source

in each operating fund for the ensuing fiscal period, the

total of which shall not be less than the total of all

appropriations made from each fund in the general

appropriation bills as passed.


                                       18

Thus, the people were specifically advised in 1963 that the


focus of this provision was to ensure accountability for the


making of the entire state budget.            A reciprocal provision


applicable to the Governor, art 5, § 18,19 was also added in


1963.      These were entirely new provisions added to the 1963


constitution whereas the language of art 2, § 9 was carried


forward from the 1913 amendment to the 1908 constitution. The


1908 constitution had no provisions comparable to art 4, § 31


and art 5, § 18.

        The   point   is   that,   contrary   to   Justice   Cavanagh’s

suggestion, none of these general budget provisions added in


1963 were connected by the framers to the older language of

art 2, § 9.       More important for our purpose of discerning

whether there was a “special” common understanding of art 2,


§ 9 as the dissent supposes, it is noteworthy that the framers



     19
          Const 1963, art 5, § 18 provides:


          The governor shall submit to the legislature

     at a time fixed by law, a budget for the ensuing

     fiscal period setting forth in detail, for all

     operating funds, the proposed expenditures and

     estimated   revenue   of    the  state.    Proposed

     expenditures from any fund shall not exceed the

     estimated revenue thereof. On the same date, the

     governor shall submit to the legislature general

     appropriation   bills    to   embody  the  proposed

     expenditures and any necessary bill or bills to

     provide new or additional revenues to meet proposed

     expenditures. The amount of any surplus created or

     deficit incurred in any fund during the last

     preceding fiscal period shall be entered as an item

     in the budget and in one of the appropriation

     bills.    The governor may submit amendments to

     appropriation bills to be offered in either house

     during consideration of the bill by that house, and

     shall submit bills to meet deficiencies in current

     appropriations.

                                    19

clearly never communicated to the people that the new general


budget provisions had any bearing on other legislative acts,


such as 2000 PA 381, that merely made an appropriation of


public funds to a state institution.              In short, the general


budget provisions of the 1963 constitution do not appear to be


related to other kinds of bills that simply “appropriate” for


purposes other than the general budget process.20


     Most important to my conclusion that Justice Cavanagh is


simply wrong in supposing that art 2, § 9 refers to general


appropriation bills is the fact that art 4, § 31 provides a


definition of “appropriation bill,”21 and only this category

of bills is tied to the annual budget process.                    Thus, had the

framers    intended     that   the    art    2,   §    9    “appropriations”


limitation    on     the   right     of     referral       mean    “a   general

appropriations bill” as urged by the dissent, then I believe

that the framers would have done two things that they clearly


did not do.       First, I think the framers would have used in art

2, § 9 the art 4, § 31 definition of “appropriation bill.”

Second, I believe the framers would have advised the public in


the Address to the People of the relationship between the

newly     added     general    budget      provisions       (including      the



     20
      The   constitution   also   explicitly    recognizes   a

nonbudgetary   form  of   appropriation   acts,   those   that

appropriate public money for local or private purposes. See

art 4, § 30. The point is, the constitution does not purport,

as intimated by the dissent, to limit or define legislation

that makes an appropriation as only those acts that concern

general appropriations.

     21
      “Any bill requiring an appropriation to carry out its

purpose shall be considered an appropriation bill.” Art 4, §

31.

                                     20

definition of appropriation bill) and the older language of


art 2, § 9 limiting the power of referendum. 


       When it is so apparent throughout the 1963 constitution


that    the   framers   sought   to   clarify   the   budget-related


appropriations process, I think that the above-noted omissions


underscore that the kind of “appropriations” referenced in art


2, § 9 have nothing to do with those referenced in art 4.


Further, there is no evidence of which we are aware that in


1963 the people had a contrary “common understanding.”


       Moreover, greater assurance that there was no “common


understanding” contrary to the plain language of art 2, § 9 is

derived from the controversy that culminated in this Court’s

split decision in Todd v Hull, 288 Mich 521; 285 NW 46 (1939).


In Todd, this Court was called upon to determine whether 1939

PA 322 was properly given immediate effect pursuant to Const

1908, art 5, § 21,23 notwithstanding that, by giving the act



       22
      1939 PA 3 abolished the Michigan Public Utilities

Commission, created the Michigan Public Service Commission,

and appropriated $10,000 from the general fund for the purpose

of setting up the MPSC.

       23
      That provision of our 1908 constitution–which contained

language identical to that appearing in the 1908 version of

art 2, § 9–provided that


       the legislature may give immediate effect to acts

       making   appropriations   and    acts   immediately

       necessary for the preservation of the public peace,

       health or safety . . . . [Const 1908, art 5, § 21

       (emphasis supplied).]


Compare this “immediate effect” provision language with that

of Const 1908, art 5, § 1 (the predecessor to Const 1963, art

2, § 9): 

              [T]he people reserve to themselves the

                                                (continued...)

                                  21

immediate effect, the Legislature had encroached upon Const


1908, art 5, § 1 (the precursor of Const 1963, art 2, § 9.


Four        members    of   the    Todd     Court   agreed,     with    little


explanation, with the plaintiffs’ assertion that 1939 PA 3 was


not in the category of “acts making appropriations” within the


meaning of art 5, § 21. However, four other justices observed


that


       [t]here is no question but that the act makes an

       appropriation. An act making an appropriation as

       used in the Constitution is a legislative act which

       sets apart or assigns to a particular purpose or

       use a sum of money out of what may be in the

       treasury of the State for a specific purpose and

       objects,–an act authorizing the expenditure of

       public funds for a public purpose. [Todd at 531.]


Regarding        the    referral     question,      these     four     justices

additionally opined that

        [t]he claim that plaintiffs are entitled to a

        referendum is effectually disposed of by the

        language of the Constitution itself because if the

        legislature had a right to give the act in question

        immediate effect, then it negatived the idea of a

        referendum. [Todd, supra at 535.]

        The significance of Todd is not that it conclusively


       23
        (...continued)

       power to . . . approve or reject at the polls

       any act passed by the legislature, except acts

       making appropriations for state institutions

       and to meet deficiencies in state funds.


                                   * * *


            The second power reserved to the people

       is the referendum.     No act passed by the

       legislature shall go into effect until 90 days

       after the final adjournment of the session of

       the legislature which passed such act, except

       such acts making appropriations and such acts

       immediately necessary for the preservation of

       the public peace, health or safety, as have

       been given immediate effect by action of the

       legislature. [Emphasis supplied.] 

                                       22

construed the same language at issue in this case.              The fact


is, Todd–a split decision–has no precedential value.              Todd is


nevertheless highly relevant because it involves a claim,


similar to the one made here, that the Legislature’s inclusion


of an appropriation in 1939 PA 3 was a “mere subterfuge,” Todd


at 531, to place it within the category of acts that could be


given immediate effect and thus be immune to referendum. 


     Todd demonstrates that the people were aware in 1963 that


the Legislature had exercised what it believed to be its


appropriation prerogative in such a fashion as to diminish the


people’s right of referral.         Notwithstanding, the people did

not seek to change the constitutional referral language to

preclude the Legislature from capriciously exercising its


power of appropriation.


                             V.    CONCLUSION

     Determining the people’s “common understanding” of a

relatively obscure constitutional provision ratified nearly


forty   years    ago   is    admittedly      a   challenging    deductive


enterprise–one    that      must   be     grounded   in   the   available

evidence.   Above all, it is not a psychic exercise.              On the


basis of the evidence we have independently sought, I conclude


that there is no reliable evidence that the people commonly


understood anything other than what art 2, § 9 plainly says:


that the people’s power of referral is precluded concerning


any act that makes an appropriation for a state institution.


Accordingly, 2000 PA 381 falls within the category of “acts

making appropriations for state institutions” and is thus not


                                    23

amenable to the people’s right of referral under art 2, § 9.


     The majority’s decision today will undoubtedly disappoint


those who passionately believe that 2000 PA 381 represents bad


public policy.    While it will be of no consolation, it bears


restating that the serious underlying political question is


not before the Court. 


     In the current charged political environment, the dissent


makes an emotionally appealing argument: Why not just let the


people decide?     Simply answered, the people’s ability to


decide by the referendum process is not infinite; rather, it


is circumscribed by the limitations placed in the Michigan

Constitution.     While perhaps less satisfying to those who

oppose 2000 PA 381, our answer is that the people are still


free to directly challenge the propriety of the legislation by

initiative.     Const 1963, art 2, § 9; MCL 168.471, 168.472.

Additionally, if the people believe that the Legislature has


abused its powers by capriciously precluding their power of

referral, the traditional means of voter sanction remain

recall and the ballot box.    However, the limitations imposed

in art 2, § 9 on the people’s right of referral preclude that

they do so by means of referendum. 


     Finally, while it may be attractive to some, I believe


that the dissenter’s approach is not only at odds with the


constitution,     but   destroys     the   Legislature’s     direct


accountability to the people for its acts by interposing the


judiciary as an arbiter of essentially political questions


that are fundamentally legislative in character.           Consider

Justice Cavanagh’s tests of what he believes constitutes

                               24

“appropriations” that do preclude referrals under art 2, § 9:


(1) grants that “ensure the viability of [state] agencies”; or


(2) grants that “support the agencies’ ‘core functions.”


(Slip   op    p    9.)      Exactly      how        large   an    “appropriation”


constitutes one sufficient to ensure the “viability” of a


state agency or, for that matter, its “core function”?                           What


is a state agency’s “core” function, what constitutes its


“viability,” and who gets to decide these questions–the Board


of Canvassers, the Secretary of State, the courts?                                The


dissenters        are    eager   to     have    the     courts     decide    these


questions.         Perhaps there are members of the public who

believe that the courts are competent to address these issues.

I submit that these are Delphic questions that neither a judge


nor the judicial system itself is best equipped to answer.

More to the point, the tests the dissenters urge to assess

whether an act making an appropriation is nonetheless amenable


to referral despite the express constitutional limitation are

simply ones made up from whole cloth and which have no basis

in the text of our constitution.                        The judiciary is not


authorized        to    create   ways    of    evading      the    terms    of    our

constitution; nor should the courts manufacture tests that


amount to no more than providing a means of promoting sitting


judges’      personal      preferences         to    accomplish      such   goals.


Neither is a judicial function, and the public should never be


confused on this issue. Our courts must refrain from engaging


in such endeavors because they are beyond our constitutional


authority and competence.



                                        25

               S T A T E      O F   M I C H I G A N


                           SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,

v                                                       No.   119274

SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,

       Defendants-Appellees,


and

PEOPLE WHO CARE ABOUT KIDS,

       Intervening

       Defendant-Appellee.




MARKMAN, J. (concurring).


       The issue before this Court is whether it will act as a

court of law and read the constitution in accord with its


plain language, or whether it will effect what many, perhaps


even most, in this state view as a “good” thing.       The majority


opinion, in which I fully join, sets forth its analysis simply


and straightforwardly.     It does so because the constitutional


issue before us is simple and straightforward.         I offer this

concurrence only to emphasize the extremely important points


of disagreement between the majority opinion, and the opinions


of the Court of Appeals and my dissenting colleagues.


                         I. COURT   OF   APPEALS


     Concerning the opinion of the Court of Appeals in this


matter, I offer the following thoughts:


     (1) The Michigan Constitution excepts from the referendum


process “acts making appropriations for state institutions.”


It may well have been preferable for the constitution instead


to have excepted from the referendum process: (a) merely acts


that are necessary in order for the state to “exercise its

various functions free from financial embarrassment”; (b)

merely acts appropriating monies without which state agencies


“would cease to function,” or without which their “continued

existence” would be in jeopardy; or (c) merely acts that

pertain to the “core functions,”          or that are not “peripheral


to the core purpose,” of state agencies.1                 However, the

constitution did none of these.          Rather, it excepted from the

referendum   process    “acts   making     appropriations    for   state

institutions.”     In    reading    into     the    constitution   these


     1
       The Court of Appeals asserts that these alternative

formulations, each of which it has incorporated in its

opinion, were set forth by this Court in Detroit Auto Club v

Secretary of State, 230 Mich 623; 203 NW 529 (1925), in the

course of our interpreting the predecessor version of the

current Michigan Constitution. However, such language, to the

extent that it can be discerned at all in Detroit Auto Club,

was set forth in the altogether different context of

determining whether the state highway department was or was

not a “state institution.” It was not done in the context of

determining whether an enactment of the Legislature was an

“act[] making appropriations.”   Furthermore, this Court in

1925, as in 2001, could not alter the language of the

constitution, and it did not purport to do so.

                                    2

alternative limitations upon the referendum process, the Court


of Appeals has, without warrant, substituted its own judgment


concerning how the constitution ought to read in place of the


judgment of those who actually proposed and ratified the


constitution. 


      (2) In particular, the Court of Appeals has, without


warrant, substituted its own judgment for that of “We, the


people of the State of Michigan” who “have ordain[ed] and


established] this constitution.”2           “This” constitution is one


that, for better or worse, excepts from the referendum process


“acts making appropriations for state institutions.”                   It is

not one that excepts from the referendum process a greater or

a   lesser   range   of   legislative       acts,   depending   upon     the


personal preferences of individual judges or the political

imperatives of the moment.

      (3) In a truly remarkable statement, the Court of Appeals


asserts: 

           [E]ven if we were to conclude that the

      statutory expenditures constituted appropriations

      for state institutions as contemplated by [the

      constitution], we would nevertheless hold that the

      overarching right of the people to their ‘direct

      legislative voice’ . . . requires that 2000 PA 381

      be subject to referendum.


I would respectfully suggest that the “overarching right of


the   people”   is   to   have   the    constitution    that    they    have


ratified given respect and accorded its proper meaning.                  The


fundamental flaw in the Court of Appeals statement is evident


in its very assertion.      Who is to say, for example, that this



      2
          Const 1963, Preamble (emphasis added).

                                       3

particular         “overarching          right,”      “the      right    to    a   direct


legislative voice,” is more “overarching” than the right of


the people to have the legislative judgment of their elected


representatives given effect over the objections of five


percent       of   the       electorate?         In    truth,      in     a   system     of


constitutional government, we examine the language of the


constitution            itself      to     determine            which     rights        are


“overarching.”               Whether      the    referendum          process       or   the


legislative judgment should prevail in a particular case does


not depend upon which right or which value is perceived to be


more “overarching” by a judge, but rather upon which result is

required by the terms of the constitution itself.                             There is,

in fact, an “overarching right” to a referendum, but only in


accordance with the standards of the constitution; otherwise,

there    is    an       “overarching       right”          to   have    public      policy

determined         by    a    majority     of    the       people’s     democratically


elected representatives. 

        (4)   It    is       hard   to   imagine       a    single      statement       more

fundamentally at odds with the genuinely “overarching right”


of the people to responsible constitutional government than

that of the Court of Appeals.                   I repeat it, for it evidences


a profound misunderstanding about the proper role of the


judiciary that demands response: 


             [E]ven if we were to conclude that the

        statutory expenditures constituted appropriations

        for state institutions as contemplated by [the

        constitution], we would nevertheless hold that the

        overarching right of the people to their ‘direct

        legislative voice’ . . . requires that 2000 PA 381

        be subject to referendum.

What this apparently means is that, “[e]ven if we were to


                                            4

conclude” that the constitution stated one thing, the Court of


Appeals panel would still abide by its own views in holding


that the constitution meant a different thing. Thus, it could


be that “[e]ven if we were to conclude” that the constitution


prohibited     prior      restraints         on    the    press,        we    would


“nevertheless hold” that the “overarching right” of persons to


a fair trial requires that newspapers not write irresponsibly


about high-profile criminal cases.                  Or it could be that,


“[e]ven   if   we   were    to    conclude”        that    the    constitution


prohibited denying criminal defendants a right to a jury


trial, we would “nevertheless hold” that the “overarching

right”    of   judicial     efficiency         requires     that       exceptions

sometimes be made to this requirement.                    In other words, no


matter what the actual language of the constitution, the Court

of   Appeals    panel     will,    in        effect,     create    a     “higher”

constitutional law whose requirements will supersede those of


the constitution ratified by “we, the people.”                     This is not

law; it is a prescription for judicial domination.

                    II. JUSTICE CAVANAGH ’S DISSENT


     Concerning     the    dissent      of     Justice     Cavanagh      in    this

matter, I offer the following thoughts:


     (1) In addition to the various standards fashioned by the


Court of Appeals in replacing those set forth by the Michigan


Constitution, the dissent adds the standard of “great public


significance.”          Apparently,          the    greater       the        “public


significance” of a law, the more essential it is that a


referendum be allowed to proceed, notwithstanding the language

of the constitution.        For what it is worth, I am in complete


                                        5

agreement that 2000 PA 381 is a matter of “great public


significance” and can easily appreciate why its opponents wish


to make it the subject of a referendum.            Nevertheless, it can


be assumed that any measure that becomes the focus of a


serious referendum effort will be a matter of “great public


significance” and, in any event, the constitution does not


make distinctions between those legislative enactments that


some justices may view as of “great public significance” and


those that are viewed as of lesser significance.


     (2) Equally irrelevant to this Court’s constitutional


analysis are the dissent’s various references to the “lame­
duck” character of the Legislature3; the fact that “firearms

advocates and persons interested in hunting” are “pitted”


against    a    “coalition     of   law    enforcement,   religious,   and

educational interest”; and the fact that some individual

members of the Legislature view their colleagues as having


improper motives in attaching an appropriations provision to

2000 PA 381. 

     (3)       The   dissent   chastises     the   majority   for   having

“neglected to recite” certain facts in its opinion.             With all

due respect, the majority has done no such thing.                   It has


merely neglected to “recite” facts that are wholly irrelevant


to its legal analysis, as is typically the case in our



     3
       The dissent describes the majority as “granting the

lame-duck legislative majority the prize it apparently sought

. . . .” However, as the dissent well appreciates, judges are

not in the business of “granting prizes” to either side of a

controversy; rather, they are in the business of interpreting

the language of the law and letting the chips fall where they

may.

                                      6

opinions.    The majority, for example, views it as irrelevant


for   purposes    of    its     legal       analysis          that    the     law     under


consideration     is    of     “great       public       significance,”             or,   in


particular,      that    the    law     relates          to     a    highly        divisive


political controversy. Rather, the constitution means exactly


the same thing whether the law at issue pertains to firearms,


to farming irrigation, or to any other conceivable subject


matter.     Therefore, reciting the details or the political or


legislative      history       of     the        statute      before         us,    beyond


identifying    the      appropriations            that     it       makes,    would       add


nothing to the constitutional analysis. Furthermore, contrary

to what would have been the case if the dissent’s position had

prevailed, “future litigants,” concerning whom the dissent


expresses such concern, will henceforth be apprised of the

unvarying    meaning      of    the    constitution,                and   will      not    be

required to count noses about how many justices view the law


at issue in their future case as being of “great public

significance,” or whether the appropriations made in their

future case involve a “core function” or are essential to the


“continued existence” of some state agency. 

      (4) The dissent describes the majority’s constitutional


analysis as one that “focuses narrowly on the superficially


straightforward question,” as being “legalistic,” as being


“pinched,” and as being “overly literal.”                           Such descriptions


are typical of those uttered when a judge is frustrated in his


ability to reach a particular result by the actual language of


the law.      Contrary to the dissent, the majority does not

interpret the constitution “literally” or “legalistically.”


                                            7

There is simply no reasonable alternative interpretation to


the words “acts making appropriations for state institutions.”


Again, it may well be that the dissent’s       formulation of the


right of referendum is preferable to that of the constitution.


However, such a determination is not for this Court to make–


no matter how “publically significant” a law.           As Chief


Justice Marshall recognized in Marbury v Madison, nearly two


centuries ago, it is the responsibility of the judiciary to


say what the law “is,” not what it believes that it “ought” to


be.4


        (5) The dissent’s reference to Justice Cooley’s rules of

constitutional interpretation is apt, but misses the point.

Constitutional      interpretation    varies    from    statutory


interpretation principally because constitutional language

tends to be more concise, and to relate to broader expressions

of principle, than does statutory language.       The language of


constitutions, therefore, also tends to be more susceptible to

multiple interpretations than does the more precise and more

thorough language of statutes.       Justice Cooley’s rules make


clear how, in a constitutional context, broad language and

general words are to be given reasonable meaning.           When,


however, constitutional language is straightforward, such as


the eligibility requirements for a member of Congress,5 or the





        4
       Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60

(1803).

        5
       Powell v McCormack, 395 US 486; 89 S Ct 1944; 23 L Ed

2d 491 (1969).

                                8

procedural requirements of the legislative process,6 we accord


such language its plain and ordinary meaning.            “[R]easonable


minds, the great mass of the people themselves” tend to accord


words such plain and ordinary meanings.               Contrary to the


dissent, Justice Cooley did not assert, in effect, that


“apple” can mean “orange,” if a group of citizens could be


found who understood it in this sense.                Rather, what he


asserted was that ambiguous terms, those fairly susceptible to


multiple understandings, should be assessed by his rules. The


“common understanding” of most words is that they possess


their plain and ordinary meanings.7

      (6)   It   should   be   noted    that   the   dissent   does   not

ultimately rest its interpretation upon any specific language


or phrase contained in the constitution, since it cannot do

so.   Instead, it relies upon such amorphous concepts as “the



      6
      Clinton v New York City, 524 US 417; 118 S Ct 2091; 141

L Ed 2d 393 (1998). 

      7
       The dissent’s “generous” reading of the constitution is

only “generous” if one starts with the point of view that a

referendum should proceed on the law in controversy. If, on

the other hand, one wishes to have the law take normal effect,

without awaiting the next general election, then perhaps the

dissent’s reading might be characterized by some as somewhat

less “generous.” Although, in my judgment, the constitution

should be interpreted “faithfully,” rather than “generously”

or “non-generously,” it is difficult for me to understand how

any interpretation can be drawn from the language of the

referendum clause, no matter how “generous,” that leads to the

conclusion reached by the dissent. It is unclear whether the

dissent believes that the majority has misconstrued “acts” or

“making” or “appropriations” or “for” or “state” or

“institutions,” or how such words have been misconstrued. In

other words, exactly which interpretation of which word by the

majority is most “dark” or most “abstruse,” in the dissent’s

judgment? 



                                   9

overall approach” to legislation taken by the constitution’s


framers and the people who ratified it.            But, rather than


taking the framers and ratifiers of the constitution at face


value and assuming that they intended what they plainly wrote,


the dissent manages creatively to conclude that the framers


and ratifiers meant something other than what they wrote.           On


what basis does it reach such a conclusion?        Does the dissent


identify convincing statements in support of that proposition


by the framers?    Does the dissent point to evidence that “we,


the   People”   were   misled   into   believing   that    “acts”   or


“appropriations”       really    did    not   mean        “acts”    or

“appropriations?”      Does the dissent offer new historical

information that the ratifiers understood that Detroit Auto


Club, and other earlier decisions of this Court, were being

reversed by the Constitution of 1963?              No, there is no

argument of this kind.8    All that we are left with is that the


dissent believes that the drafters of the constitution, and

“We, the People” who ratified it, should have adopted the


      8
       In lieu, the dissent asserts that the “great mass of

the people” would, if asked, “surely suppose” that the

language of the referendum clause did not mean what the

majority understands. I do not know whether the dissent is

right or wrong in this proposition, for it sets forth no

evidence in this regard and I am aware of no such evidence.

However, at the very least, the dissent is obligated to

demonstrate in regard to its assertion: (a) why it should be

assumed that the “great mass of the people” did not understand

that their words would be taken seriously and accorded their

common understanding; and (b) why a substantial majority of

the people’s representatives in the Legislature, the

overwhelming number of whom had just been reelected and who

had been fully apprised by opponents of 2000 PA 381 of the

latter’s   views   on  the   impropriety   of   attaching   an

appropriations provision to this measure, cannot be assumed to

have been representing the actual sentiments of the “great

mass of the people.” 

                                 10

referendum provision that it prefers.9


                     III. JUSTICE WEAVER ’S DISSENT


      Concerning the dissent of Justice Weaver in this matter,


I offer the following thoughts:


      (1) The dissent asserts that Detroit Auto Club stands for


the proposition that only appropriations that “enable the


state to exercise its various functions free from financial


embarrassment,” or without which state agencies would “cease


to   function,”   are      excepted    from    the   referendum     process.


However, Detroit Auto Club, does not say this at all; rather,


it merely stands for the proposition that the Michigan Highway

Department is a “state institution.” It does not even purport

to   address   the    issue    of     what    constitutes    “acts    making


appropriations.”          Of course, even if the decision had said

what the dissent asserts, no decision of this Court can

permanently transform the plain language of the constitution.


      (2) The dissent asserts that “the majority fails to

recognize the importance of the referendum, and this Court’s

responsibility       to     protect    the    people’s      power    of   the


referendum, derived from the constitution . . . .”                  However,

a better characterization of this Court’s “responsibility,” in


my judgment, is that we have a responsibility to protect the


people’s power of referendum as set forth by the constitution,


      9
       The dissent is harsh in its characterization of the

Legislature’s “legerdemain” in attaching an appropriations

provision to 2000 PA 381.     Possibly, this is a deserved

characterization. But, any such skills in this regard by the

Legislature can hardly compare to the “legerdemain” (or,

indeed, the alchemy) on the part of the dissent in

transforming an otherwise clear and straightforward statement

of law into something of altogether different meaning. 

                                      11

and we have a responsibility to protect the people’s power of


representative      self-government         as        set     forth     by   the


constitution.      Indeed, the principal “responsibility” of this


Court is to read the language of the constitution faithfully.


If the people wish to modify their constitution, they may do


so under the terms of article 12, and the majority will


attempt to interpret the modified constitution faithfully.


But the majority will not act as a continuing constitutional


convention and dilute the people’s right to have their supreme


law mean what it says.


                        IV.   JUSTICE KELLY ’S DISSENT

        Concerning the dissent of Justice Kelly in this matter,

I offer the following thoughts:


        (1) The dissent contends that the majority “ignores” the

meaning of the word “for” as used in the constitutional

provision “acts making appropriations for state institutions.”


I respectfully disagree. The relevant meaning of “for” in the

instant context is “intended to belong to.”10 Clearly, in this

case, the appropriation was “intended to belong to” the


Department of State Police. Demonstrating that no word is too

straightforward not to be transmuted beyond recognition, the


dissent manages to conclude that what the framers and the


people     meant   by    using      the   word    “for”       was     that   only


“appropriations aimed at satisfying the purpose or reason for


which a state institution exists” are excepted from the


referendum    process.        The    premise     of    this    interpretation


     10
          Random House Webster’s College Dictionary (1991) at

519.

                                      12

appears to be that there is a meaningful distinction between


an agency qua agency, and the functions that are performed by


such agency, i.e., that there is some disembodied assemblage


of functions that are carried out by an agency that define its


“essence” or “core” as distinct from the total array of


functions that it is charged by the law with carrying out.


This    is   plainly     without       any      basis.       If    the    Legislature


determined        tomorrow    that        the    Department       of     State   Police


should,      in    addition     to    its       current     responsibilities,          be


assigned new responsibilities now belonging to the Department


of     Corrections,          monies         appropriated           for     such       new

responsibilities         would       be     every     bit    as    much    “for”      the

Department of State Police as monies appropriated “for” its


current responsibilities.                 I am aware of no textual or other

basis    for      understanding        “for”       to    mean     anything       at   all

different in these circumstances.


        (2) The dissent accurately asserts that “[w]e start by

examining the provision’s plain meaning as understood by its

ratifiers at the time of its adoption.”                           I agree with that


statement and I believe that this is exactly what the majority

has done.         The dissent has failed to produce a scintilla of


evidence to demonstrate that the people of this state in 1963


understood the language “acts making appropriations for state


institutions” to mean anything other than what it plainly


says.


        (3) Because the dissent is unable to produce evidence to


contradict         the   idea        that       the     people      intended      their

constitution to mean what its words convey, in the end, it


                                            13

also relies upon such amorphous concepts as “the fundamental


purpose of the general power of referendum” to justify its


interpretation of the law.            However, there is no “general


power” of referendum in Michigan, but only a specific power of


referendum as defined by the constitution.                   And whatever


“fundamental purpose” can be discerned to the referendum


power, such a purpose must be subordinate to the “fundamental


purpose”   of     a    constitution       itself,   which    is    that    it


establishes the ground rules for a system of self-government,


and its words, where plain, must be taken seriously.


                  V. FINAL QUERY FOR THE DISSENTERS

      Finally, I would address the following question to each

of my dissenting colleagues: Had those who proposed and


ratified   our    constitution      truly     intended      to    limit   the

referendum power as the majority interprets it, how should

they, how could they, have fashioned it any more clearly than


they did in article 2, § 9?         That is, what words should they

                                    11

have used that they did not?
                             VI. CONCLUSION


      I respectfully believe that the Court of Appeals and my

dissenting colleagues, by transforming the plain meaning of


the words of the constitution, would engage the judiciary in


an exercise far beyond its competence and authority.                 While I


can   certainly       understand   the    frustrations      of    those   who



      11
       In this regard, I can recall the member of Congress

who, in frustration over a judicial interpretation of a

statute that, in his opinion, ignored its plain language,

reintroduced the identical statute, but appended at its

conclusion, “and we mean it this time!” 

                                    14

disapprove of the substance of 2000 PA 381, such frustrations


should not be viewed as a justification for giving a meaning


to   the   constitution   that   is   so   irreconcilable   with   its


language.12





      12
       In light of the confusion generated, let me make clear,

for what it is worth, that I, as a part of the citizenry of

Michigan, would also prefer a broader referendum clause in our

constitution,   one   less   susceptible   to   avoidance   by

appropriations of the type contained in 2000 PA 381. However,

until such a referendum clause is adopted by the prescribed

constitutional process, see Const 1963, art 12, I will

continue to interpret, as best as I can, the referendum clause

that has actually been ratified by the people. Furthermore,

let me make clear that I am not oblivious to the debate over

the motives of the Legislature in attaching the instant

appropriations to 2000 PA 381. However, for the reasons set

forth in Chief Justice Corrigan’s concurring opinion, I simply

do not believe that such motives are relevant to our

constitutional analysis.

                                 15

                   S T A T E    O F    M I C H I G A N


                               SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,


v                                                          No. 119274


SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,


       Defendants-Appellees,

and

PEOPLE WHO CARE ABOUT KIDS,


     Intervening

     Defendant-Appellee.

________________________________
CAVANAGH, J. (dissenting).


       This case presents issues involving the Legislature’s


constitutional authority and the authority of the people of

Michigan—expressly reserved in our 1963 constitution—to vote


on matters of great public significance.           The statute in this


case affects just such an issue of great public significance,


involving the delicate balance between the free exercise of


Second Amendment rights and the fundamental obligation of


government    to     protect     its   citizens’    physical   safety.

Understandably, this case has energized opposing groups of


citizens to a degree rarely seen in public debate.1

     Similarly, this case has energized this Court, prompting


each justice to offer an opinion.       I join in and agree with


the reasoning offered in the dissenting opinions by Justice


KELLY and Justice WEAVER .    However, I offer this opinion to


address my specific concerns with the majority’s decision.


     The   facts,   which    the   actual   majority   opinion   has


neglected to recite to either explain its opinion or to serve


future litigants as precedent, and which appear only in the


seriatim concurrences, are not in dispute.        For many years,

Michigan has restricted citizens’ rights to carry concealed

weapons.   To obtain a permit to carry a concealed weapon from


a county concealed weapons board, a person has needed to

demonstrate “proper reasons” to carry a concealed weapon. See



     1
       The many concerned citizens on both sides defy easy

description. To oversimplify, the background dispute over the

place of weapons in our society pits firearm advocates and

persons interested in hunting against a coalition of law

enforcement, religious, and educational interests.

     In his concurrence, Justice YOUNG characterizes my

observations as a “generous” statement of my own “extensive

personal views” of the “political issue” underlying this case.

Slip op at 2 (YOUNG , J., concurring). While he is certainly

correct that this “political issue” is not before the Court,

his conclusion that I have somehow aired my views of the

matter is baffling.      This dissent merely states that the

underlying matter, which led to the referendum drive, is

significant and that thoughtful people may disagree about it.

If that is a “generous” statement of my “extensive personal

views,” then apparently Justice YOUNG is equally copious about

the matter, see id., and one can only wonder what Justice YOUNG

would conclude about Justice MARKMAN ’s generosity. See slip op

at 6-7 (MARKMAN , J., concurring) (“For what it is worth, I am

in complete agreement that 2000 PA 381 is a matter of ‘great

public significance’ and can easily appreciate why its

opponents wish to make it the subject of a referendum”).

                                   2

MCL 28.426, repealed by 2000 PA 381. Under the former system,


the popular perception was that the permits were difficult to


obtain.


     Proposed legislation to change this system was introduced


in the 90th Legislature, but it had few prospects for approval.

However, a legislative majority discovered new prospects after


the November 2000 election, when the Legislature reconvened to


conduct its biennial “lame duck” session.2        In 2000 PA 381,


the Legislature adopted what is popularly known as “shall


issue” legislation, providing that county boards must issue


concealed   weapons   permits   to   applicants     when   certain

unremarkable conditions are met.     See MCL 28.425b(7). 

     Despite the timing of its passage, this profound change


in Michigan law did not go unnoticed.       Opposition quickly

formed, but to no immediate avail.    However, opponents of the

new law realized the great public interest in this measure,


and the likelihood that Michigan citizens on both sides of the

issue would want to make their views known.            Therefore,

opponents began publicly to discuss invoking the referendum


process that the people of Michigan reserved for themselves in

Const 1963, art 2, § 9.


     In that constitutional provision, the people kept the


right to vote on laws enacted by the Legislature.      The people


of Michigan have long reserved this right, first providing for


it in Michigan’s 1908 Constitution.     See Const 1908, art 5,


     2
       Because of its timing, the lame duck session is

understood to be a period of diminished public accountability.

See, e.g., Farber & Frickey, Public choice revisited, 96 Mich

L R 1715, 1729 (1998). 

                                3

§ 1.     Recent examples of the people exercising this right


occurred with the controversial legislation discussed in Doe


v Dep’t of Social Services, 439 Mich 650, 658; 487 NW2d 166


(1992), and with the measures discussed in Bingo Coalition for


Charity—Not Politics v Bd of State Canvassers, 215 Mich App


405; 546 NW2d 637 (1996).


       The referendum power is not unlimited, however.                   The


framers of the Constitution—and the people of Michigan when


they ratified the constitution—wisely limited the referendum


power     so    that    it   would      not     “extend   to    acts   making


appropriations for state institutions . . .,” Const 1963, art

2, § 9.     For obvious reasons, the state’s fulfillment of its

financial obligations cannot be subject to the delay and


uncertainty inherent in the referendum process.                   Indeed, as

this Court has stated, the limitation is designed to “enable

the    State    to     exercise   its    various     functions    free   from


financial embarrassment.”            Detroit Auto Club v Secretary of

State, 230 Mich 623, 625; 203 NW 529 (1925).

        The concealed weapons legislation that is the subject of

this suit acquired, late in the enactment process, some

language that provided for a $1 million grant to the Michigan


State Police.        See MCL 28.425w.         Intervening defendant People


Who Care About Kids seeks to establish that the monetary


provision of 2000 PA 381 will have no effect on the state’s


ability to function normally, and is not necessary to save the


state    from   financial     embarrassment.          Rather,    intervening


defendant suggests that the monetary provision of the act was

added specifically to evade the people’s right to review the

                                        4

wisdom of the concealed weapons provisions in that act.3                 That


is, intervening defendant states that although 2000 PA 381


will fundamentally change Michigan law governing concealed


weapons   permits,      a   legislative    majority    acted      with   the


specific intent to deny Michigan citizens their right to


decide whether most people should be legally allowed to carry


concealed firearms.


      In answering this argument, the majority focuses narrowly


on the superficially straightforward question whether 2000 PA


381 fits within the phrase “acts making appropriations for


state institutions.”         Slip op at 2.   As the reader has seen,

the   majority    has       no   problem   answering       that    question

affirmatively, granting the lame-duck legislative majority the


prize it apparently sought: freedom to change the concealed

weapons law without public review through the referendum

process.


      Despite    the    legalistic    temptation      to   focus    on    the


      3
        Various Michigan legislators would agree with

intervening defendant. For example, protesting the new law,

Senator Byrum stated that “we know that the only reason there

was an appropriation . . . was to block the referendum, block

the people’s right to disagree with the action of their

Legislature,” 2000 Journal of the Senate 2125, and Senator

Gast said that the appropriation “was put in to make it

bulletproof and ballot-proof, and I think it’s kind of

deceptive.” White, Lawyers, guns and money: weapons petitions

go to court, Grand Rapids Press, June 10, 2001, at A18.

Similarly, Representative Wojno stated that “the reason that

the    proponents   of    this    legislation   added    this

appropriation . . . is inappropriate and insidious.      They

apparently believe that in doing so they can circumvent

Article II, Section 9 of the Michigan Constitution, and

silence the voices of the majority of the people of this

State,” while Representative Jellema added that the eleventh­
hour addition of the appropriation “further diminishes the

right of voters to express their views on this very important

issue.” 2000 Journal of the House 2682, 2683.

                                     5

seemingly literal language of a single phrase in a single


sentence, the pertinent sentence here is but one sentence in


our state Constitution.   Constitutional analysis must not be


overly literal; it is an undertaking that must be approached


in an entirely different light.      Long ago, Michigan’s great


constitutional scholar Justice COOLEY set forth for his many


successors on this Court the primary rule of constitutional


interpretation, the rule of “common understanding,” described


in his treatise Constitutional Limitations, p 81, to which


this Court has turned so frequently.    This Court gave a fully


developed explanation of the rule in Traverse City Sch Dist v

Attorney Gen, 384 Mich 390, 405-406; 185 NW2d 9 (1971):

          This case requires the construction of a

     constitution,  where   the  technical  rules  of

     statutory construction do not apply. McCulloch v

     Maryland, 17 US (4 Wheat) 316, 407; 4 L Ed 579

     (1819).

          The primary rule is the rule of “common

     understanding” described by Justice Cooley:

          “A constitution is made for the people and by

     the people.    The interpretation that should be

     given it is that which reasonable minds, the great

     mass of the people themselves, would give it. ‘For

     as the Constitution does not derive its force from

     the convention which framed it, but from the people

     who ratified it, the intent to be arrived at is

     that of the people, and it is not to be supposed

     that they have looked for any dark or abtruse

     meaning in the words employed, but rather that they

     have accepted them in the sense most obvious to the

     common understanding, and ratified the instrument

     in the belief that that was the sense designed to

     be conveyed.’ (Cooley’s Const Lim 81.) (Emphasis

     added.)”


                            * * *


          A second rule is that to clarify meaning, the

     circumstances surrounding the adoption of a

     constitutional provision and the purpose sought to

     be accomplished may be considered. On this point

                              6

       this Court has said the following:


            “In construing constitutional provisions where

       the meaning may be questioned, the court should

       have regard to the circumstances leading to their

       adoption and the purpose sought to be accomplished.

       Kearney v Board of State Auditors, [189 Mich 666,

       673; 155 NW 510 (1915)].”


            A third rule is that wherever possible an

       interpretation that does not create constitutional

       invalidity is preferred to one that does.    Chief

       Justice Marshall pursued this thought fully in

       Marbury v Madison, [5 US (1 Cranch) 137, 175; 2 L

       Ed 60 (1803)], which we quote in part:


            “If any other construction would render the

       clause inoperative, that is an additional reason

       for rejecting such other construction . . . .”

These are the principles we must apply when interpreting our

state constitution.

       The first and second principles stated in Traverse City


Sch Dist greatly help in answering the question presented in

this case.        Under those rules, we are to set aside the

“technical rules of statutory construction” and the quest for


“dark or abtruse meaning” in favor of the interpretation that

“reasonable minds, the great mass of the people themselves,”

would give the state constitution.                 Without question, that


exercise must be carried out in light of the whole document.

Further, it must involve a generous reading of the people’s


will,     freed      of     a     lawyer’s     instinct   toward    pinched


constructions of narrow phrases.


        When considered as a whole, the constitution provides


various explanations of, and restrictions on, the legislative


process.    A broad examination of the provisions of article 4


evidences that the framers and the people placed an extremely

high    value   on    the       integrity    and   accountability   of   this

                                        7

process.       There, the Constitution prohibits the Legislature


from       playing   deceptive   games    in   the   course   of   enacting


legislation,4 and further seeks to assure that legislation is


given meaningful consideration before it is adopted.5 Article


4 also notes the special nature of appropriations bills.6


       4
       Const 1963, art 4, §§               24 and 25, provides this

protection, stating:


            No law shall embrace more than one object,

       which shall be expressed in its title.      No bill

       shall be altered or amended on its passage through

       either house so as to change its original purpose

       as determined by its total content and not alone by

       its title. 

            No law shall be revised, altered or amended by

       reference to its title only.       The section or

       sections of the act altered or amended shall be re­
       enacted and published at length. 

       5
       Const 1963, art 4, § 26, provides this assurance,

stating:


            No bill shall be passed or become a law at any

       regular session of the legislature until it has

       been printed or reproduced and in the possession of

       each house for at least five days.      Every bill

       shall be read three times in each house before the

       final passage thereof. No bill shall become a law

       without the concurrence of a majority of the

       members elected to and serving in each house. On

       the final passage of bills, the votes and names of

       members voting thereon shall be entered in the

       journal.

       6
           This is Const 1963, art 4, § 31, which provides:


            The general appropriation bills for the

       succeeding fiscal period covering items set forth

       in the budget shall be passed or rejected in either

       house of the legislature before that house passes

       any appropriation bill for items not in the budget

       except bills supplementing appropriations for the

       current fiscal year’s operation.          Any bill

       requiring an appropriation to carry out its purpose

       shall be considered an appropriation bill. One of

       the general appropriation bills as passed by the

       legislature shall contain an itemized statement of

                                                 (continued...)

                                     8

Finally, the reserved role of the people is noted in article


4,7 as well as in other provisions of the Constitution.                See


Const 1963, art 2, § 9; art 12, § 2.


     In light of these provisions and the overall approach to


legislation taken by the constitution’s framers and the people


who ratified it, I am convinced that the Court of Appeals


correctly   decided    this     case.    I    am   confident    that   the


constitutional right of referendum, in this narrow context,


should not be taken away by so transparent an artifice.


Justice COOLEY ’s “great mass of the people” would, if asked,

surely suppose that “acts making appropriations for state

institutions,” which deny the people’s reserved power of

referendum,   are     general    appropriations      bills     containing


substantial grants to state agencies. Those grants would have

to ensure the viability of the agencies or, as the Court of

Appeals put it, support the agencies’ “core functions.”                246


Mich App ___; ___ NW2d ___ (2001).           The people of Michigan, I

am certain, never intended to authorize the 2000 lame duck

Legislature’s legerdemain.



     6
      (...continued)

     estimated revenue by major source in each operating

     fund for the ensuing fiscal period, the total of

     which shall not be less than the total of all

     appropriations made from each fund in the general

     appropriation bills as passed. 

     7
      Article 4, concerning the legislative branch, notes the

people’s power:


          Any bill passed by the legislature and

     approved   by   the   governor,   except   a   bill

     appropriating money, may provide that it will not

     become law unless approved by a majority of the

     electors voting thereon. [Const 1963, art 4, § 34.]

                                    9

     Additionally, the third principle stated in Traverse City


Sch Dist provides further support for this conclusion.            That


principle   is    that    when   possible,   we   must   prefer     an


interpretation     that   does    not   create    a   constitutional


invalidity over an interpretation that does.8         The referendum


power, of course, is the people’s reserved check on the


Legislature.     In Kuhn v Dep’t of Treasury, 384 Mich 378, 385,


n 10; 183 NW2d 796 (1971), this Court, ironically, referred to


the referendum power as a “gun-behind-the-door to be taken up


     8
       The Court cited Marbury v Madison in support of this

principle.    See Traverse City Sch Dist, supra at 406.

Although Marbury is sometimes cited for the proposition that

the construction of a statute that creates a constitutional

invalidity is disfavored, see, e.g., Council of Orgs & Others

for Ed About Parochiaid v Governor, 455 Mich 557, 570; 566

NW2d 208 (1997), in the passage this Court cited, Chief

Justice Marshall actually was addressing invalidating

constitutional provisions.    Council of Orgs, as well as

Traverse City Sch Dist, supra at 406, and House Speaker v

Governor, 443 Mich 560, 585; 506 NW2d 190 (1993), quoted this

passage from Marbury:


          If any other construction would render the

     clause inoperative, that is an additional reason

     for rejecting such other construction, and for

     adhering to the obvious meaning. [Id. at 175.]

The “clause” referenced, though, was a clause of the United

States Constitution, as illustrated by the United States

Supreme Court’s language preceding the quoted passage:


          It cannot be presumed that any clause in the

     constitution is intended to be without effect; and

     therefore such construction is admissible, unless

     the words require it. [Id. at 174.]


Marbury then discussed how US Const, art 3, § 2, ¶ 2 provided

for the Supreme Court’s jurisdiction, and how no construction

of any clause in that section that rendered any other clause

inoperative would be favored. See Marbury, supra at 175-180.

Traverse City Sch Dist also dealt with giving meaning to the

language of the constitution, not saving a statute from

constitutional invalidity. See Traverse City Sch Dist, supra

at 412-413. Likewise, in this case we must give meaning to,

and not invalidate, the people’s reserved referendum power.

                                  10

on those occasions when the legislature itself does not


respond to popular demands.”                However, with its decision in


this case, the majority removes the people’s check, taking the


gun from behind the door and handing it to the Legislature.


By   holding    that     the        money   inserted      into    2000     PA    381


circumvents     the     people’s       reserved     referendum          power,   the


majority     holds     that    the     referendum     power      exists     at   the


Legislature’s pleasure.              Whenever the Legislature wants to


avoid the people’s check on its power, it need only insert


some money into a bill, apparently even a de minimis amount,


to   get    around    that     power.         The   people’s      check     on   the

Legislature will thus become invalid because the people will

only have the “gun-behind-the-door” when the Legislature gives


it to them.     Such an interpretation is certainly at odds with

this Court’s commitment to liberally construe constitutional

provisions reserving for the people a direct legislative


voice, see Kuhn, supra at 385, but further leaves the people’s

reserved referendum power, in a word, useless.

      In its short opinion, the majority cites “an unbroken


line of decisions of this Court interpreting [the referendum

power].”      Slip op at 2.            The line is unbroken because it


reflects this Court’s dual commitments to the people’s right


to vote on matters of great public significance and to the


taxpayers’     right     to     a     state    government        that    maintains


responsible      and     functional           taxation    and      appropriation


policies.      At times, the latter commitment has required that


we   give   effect     to     the    constitutional       insulation       against

referring      appropriations          measures     and    related       financial

                                        11

enactments.   Never, though, has the “unbroken line” veered in


the direction approved in this case.


     Also, I find it as inevitable as night following day that


the concurrences would characterize the lengthy, thoughtful


majority opinion as “admirably concise,” slip op at 1 (YOUNG ,


J., concurring), and as setting “forth its analysis simply and


straightforwardly” and doing so because “the constitutional


issue before us is simple and straightforward.” Slip op at 1­

2 (MARKMAN , J., concurring).    Yet, as self-evident as the


majority   believes   its   result    to   be,   the   orchestrated,


explanatory concurrences appeared following this dissent.        In

my view, these serial apologias do nothing to alter the

majority’s disembowelment of the public’s constitutionally


guaranteed right to referendum.

     So, despite the constitutional structure and the people’s

desire for a check on the Legislature, the majority concludes


that the Legislature can decide when the people will have that

check. I reiterate that reasonable minds may differ about the

underlying substance of this case. Some say public safety and


ordinary social intercourse will be disturbed by a radical

switch in state concealed weapons policy, while others say


that public safety will be enhanced when responsible citizens


can carry weapons. I say, and do not believe reasonable minds


can dispute, that the constitution says that the people must


be allowed to vote.

     KELLY , J., concurred with CAVANAGH , J.





                                12

               S T A T E      O F   M I C H I G A N

                           SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,


v                                                      No.   119274


SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,


       Defendants-Appellees,


and


PEOPLE WHO CARE ABOUT KIDS,


       Intervening

       Defendant-Appellee.




WEAVER, J. (dissenting).


       I respectfully dissent from the majority’s holding that


2000 Public Act 381 is exempt from the power of referendum of

the Michigan Constitution. 

       Art 2, § 9 of the 1963 Michigan Constitution states that

“[t]he power of referendum does not extend to acts making

appropriations for state institutions or to meet deficiencies

in state funds . . . .”          This language was taken almost

verbatim1 from the 1908 Michigan Constitution, art 5, § 1


(amendment of 1913), which read:


          The legislative power of the state of Michigan

     is vested in a senate and house of representatives;

     but the people reserve to themselves the power to

     propose legislative measures, resolutions and laws;

     to enact or reject the same at the polls

     independently of the Legislature; and to approve or

     reject at the polls any act passed by the

     Legislature, except acts making appropriations for

     state institutions and to meet deficiencies in

     state funds.” [Emphasis added.] 


The sole interpretation of the “acts making appropriations for


state institutions” language of art 5, § 1 of the 1908

Constitution is found in the 1925 Michigan Supreme Court case,

Detroit Automobile Club v Secretary of State, 230 Mich 623;


203 NW 529 (1925). 

         In Detroit Automobile Club, plaintiffs sought a writ of

mandamus to compel the defendant to refrain from immediately


enforcing 1925 PA 2 in order to allow a referendum on the law.

The act at issue in Detroit Automobile Club appropriated money

for the use of the Highway Department in constructing and


maintaining the highways of the state.     To determine whether


the Legislature had the power to give the act immediate

effect, and thus preclude a referendum, Detroit Automobile


Club addressed the meaning of art 5, § 212 and art 5, § 1.


     1
      In 1974 this Court held that “The referendary provision

and exceptions of the 1908 Constitution were retained in the

1963 Constitution as art 2, § 9 without change in the

pertinent language.”   Bds of Co Rd Comm’s v Bd of State

Canvassers, 391 Mich 666, 674-675; 218 NW2d 144 (1974)

(emphasis added).

     2
         Art 5, § 21 provided in pertinent part: 

             No act shall take effect or be in force until

                                                 (continued...)

                                2

       Detroit       Automobile   Club    first     addressed     whether   the


Highway Department was a state institution within the meaning


of art 5, § 1.          Ultimately, the Court held that the Highway


Department was a state institution within the meaning of the


constitution.          Detroit Automobile Club, supra at 626.                In


order to reach this holding, the Court ruled: 


            The question is not solely whether the highway

       department may be correctly termed a state

       institution, but rather whether, in view of the

       functions which it exercises, it comes within the

       meaning of that term as used in the Constitution.

       It is not difficult to determine what the framers

       of the Constitution had in mind. It is clear that,

       by permitting immediate effect to be given to

       appropriation acts for state institutions, it was

       their purpose to enable the state to exercise its

       various    functions     free    from     financial

       embarrassment. The highway department exercises

       state functions. It was created by the Legislature

       for that purpose. It must have money to carry on

       its activities. Without the money appropriated by

       this act for its immediate use, it would cease to

       function. The constitutional purpose was to prevent

       such a contingency.       [Id., 625-626 (emphasis

       added).]


The Court viewed the purpose of the Legislature’s power to

give an act of appropriation immediate effect as one necessary

to permit the “state to exercise its various functions free


from       financial    embarrassment”        and    to   allow    for   state

institutions to carry on state functions. Id. To that Court,


this       purpose     of   the   framers      was    “not      difficult    to


determine . . . .” Id. Detroit Automobile Club recognized the


       2
        (...continued)

       the expiration of ninety days from the end of the

       session at which the same is passed, except that

       the legislature may give immediate effect to acts

       making   appropriations   and    acts   immediately

       necessary for the preservation of the public peace,

       health or safety by a 2/3 vote of the members of

       each elected house. 

                                         3

necessity of immediacy under these circumstances and it is


under     these    circumstances         that   Detroit   Automobile      Club


determined    that    an     act   was    not   subject   to    the   people’s


referendum power. 


        This Court reaffirmed its articulation of the purpose of


the constitutional provision in Moreton v Secretary of State,


240 Mich 584, 592; 216 NW 450 (1927), where it declined to


interpret the provision in a way which would “defeat the


constitutional purpose, which is to save the State from


financial    embarrassment         in    exercising    any     of   its   State


functions.”       Further, this Court has cited Detroit Automobile

Club’s interpretation of this language without question or

criticism in Co Rd Ass’n of Michigan v Bd of State Canvassers,


407 Mich 101, 112-113; 282 NW2d 774 (1979), and Michigan Good

Roads Fed v Bd of State Canvassers, 333 Mich 352, 356-357; 53

NW2d 481 (1952).3

        When the framers of the 1963 Constitution included the

language     on      “acts     making         appropriations        for   state

institutions,” and the people approved it, it was with the

knowledge of how this Court had previously interpreted this

same language in Detroit Automobile Club. It is a well­

established rule of constitutional construction that “[t]he


framers of a Constitution are presumed to have a knowledge of


     3
       The 1939 decision in Todd v Hull, 288 Mich 521; 285 NW

46 (1939), did briefly discuss art 5, § 1 of the 1908

Constitution (the predecessor to Const 1963, art 2, § 9),

although Todd’s primary focus was on whether 1939 PA 3 was

immediately necessary for the preservation of the public

peace, health, or safety within the contemplation of art 5,

§ 21, of the 1908 Constitution. Moreover, this case was a

four to four split decision, and has no precedential effect.

                                         4

existing      laws,...and    to    act   in        reference      to        that


knowledge . . . .”      People v May, 3 Mich 598, 610 (1855).               See


also, Detroit v Chapin, 108 Mich 136, 142; 66 NW 587 (1895);


Richardson v Secretary of State, 381 Mich 304, 311-313; 160 NW


2d 883 (1968); Bds of Co Rd Comm’s v Bd of State Canvassers,


391 Mich 666, 675; 218 NW2d 144 (1974).4           Indeed, in reviewing


“[t]he construction placed by this Court on this exception to


the right of referendum in the 1925 Detroit Automobile Club,


1927 Moreton, and 1952 Good Roads cases,” this Court noted:


           The delegates to the 1961 Constitutional

      Convention are presumed to have known and to have

      understood the meaning ascribed in these earlier

      decisions to the language of the 1908 Constitution.

      This language was retained by them in the 1963

      Constitution without modification in response to

      the earlier decisions.      Under well-established

      principles, it is not open to us to place a new

      construction on this language. [Bds of Co Rd

      Comm’s, supra at 676.]


Because the reasoning in Detroit Automobile Club was the sole

and       uncontradicted     interpretation         of    “acts        making

appropriations for state institutions,” I believe that its


reasoning is the best evidence of the framers understanding of


this language and perhaps the explanation why there is so

little     discussion   of   its   meaning    in    the   record       of    the


convention.     


      Applying Detroit Auto Club to the facts of this case, the


money appropriated in 2001 PA 381 is not necessary for the


      4
      Notably, in Advisory Opinion re Constitutionality of

1973 PA 1 and 2, 390 Mich 166, 176-177; 211 NW2d 28 (1973), we

stated that a judicially created exception to a constitutional

limitation of state indebtedness survived the ratification of

the 1963 Constitution because, “whatever the logic,” the

people were “presumably aware of the exception and did not

eliminate it.”

                                    5

State Police to “exercise its various functions free from


financial embarrassment,” but rather is necessary only to


implement the act itself.        Detroit Automobile Club, supra at


625-626. The State Police would not cease to function without


the appropriation. The effect of referendum on 2001 PA 381 on


the functioning of the State Police stands in contrast to the


concerns of the Court in the “gas tax cases.” Moreton, supra;


Good Roads, supra; and Co Rd Ass’n of Michigan, supra.           In the


“gas tax cases,” the Court concluded that the building of good


roads is an important state function.             Further, the Court


concluded the appropriations at issue in the “gas tax cases”

were made to “enable it to function in that regard, and, being

made for that purpose, . . . are not subject to referendum.”


Moreton, supra at 592.5

      Further, I believe that the majority fails to recognize

the    importance    of    the      referendum,   and    this   Court’s


responsibility      to    protect     the   people’s    power   of   the

referendum, as derived from the constitution and as outlined

in    Michigan Farm Bureau v Hare, 379 Mich 387, 393; 151 NW2d

797 (1967):

           There is nevertheless an overriding rule of

      constitutional construction which requires that the

      commonly understood referral process, forming as it

      does a specific power the people themselves have

      expressly reserved, be saved if possible as against

      conceivable if not likely evasion or parry by the

      legislature.   The rule is, in substance, that no

      court should construe a clause or section of a

      constitution as to impede or defeat its generally


      5
      Thus, I agree with Justice Kelly that the gas tax cases

do not support the majority conclusion, but, rather, are

consistent with my position and that of my dissenting

colleagues. See slip op at 6-7.

                                     6

        understood ends when another construction thereof,

        equally concordant with the words and sense of that

        clause or section, will guard and enforce these

        ends. 


Given     the   prior,      uncontradicted,     and   equally       concordant


construction in Detroit Automobile Club, I believe we are


precluded       in   this   case   from    applying   the    constitutional


provision in a way that would take the power of the referendum


away from the people and give it to the Legislature.6

        Under the majority’s opinion, if the Legislature were to


drop the six zeros on the appropriation in 2000 PA 381,

leaving an appropriation of $1 to the State Police, the act

would nevertheless remain referendum-proof.                 I cannot believe


that this outcome is the interpretation that “reasonable

minds, the great mass of the people themselves, would give

it.” Traverse City Sch Dist v Attorney General, 384 Mich 390,


405; 185 NW2d 9 (1971), quoting Cooley’s Const Lim 81.                       I

agree with Justice Cavanagh that by determining that the

inclusion of a monetary provision in 2000 PA 381 circumvents


the     people’s      reserved     referendum     power,      the     majority


effectively holds “that the referendum power exists at the

Legislature’s pleasure.”           Slip op at 11. 


        Finally, it is essential to recognize that the issue


before us is one of constitutional interpretation. My opinion


      6
       Such considerations are relevant even though       this

Court has recently rejected the “absurd result” mode of

statutory construction. People v McIntire, 461 Mich 147, 155­
160; 599 NW2d 102 (1999).     McIntire concerned a matter of

statutory construction.      We have long recognized that

“[c]onstruction of a constitution is a special situation where

technical rules of statutory construction do not apply.”

Highway Comm v Vanderloot, 392 Mich 159, 179; 220 NW2d 416

(1974). 

                                      7

on the issue of constitutional law in this case does not


address and should not be read to reflect one way or the other


a position on the merits of the concealed weapons act passed


by the Legislature. 


     I would affirm the result of the Court of Appeals. 





                              8

                S T A T E    O F   M I C H I G A N


                            SUPREME COURT





MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBEK, and

CORRIE WILLIAMS,


       Plaintiffs-Appellants,


v                                                       No. 119274


SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,


       Defendants-Appellees,

and

PEOPLE WHO CARE ABOUT KIDS,


     Intervening

     Defendant-Appellee.

___________________________________
KELLY, J. (dissenting).


       I agree with my two dissenting colleagues that 2000 PA


381    (Act   381)   does    not   constitute   an    act   "making

appropriations for state institutions" within the meaning of


Const 1963, art 2, § 9. Thus, I would affirm the decision of


the Court of Appeals and hold the act subject to referendum.


I write separately, however, to make several points.


                I. The Constitutional Meaning of

       "Acts Making Appropriations For State Institutions"


       In Const 1963, art 2, § 9, the people reserved the power


of referendum. They limited it, saying it "does not extend to

acts making appropriations for state institutions . . . ."

The question in the present case is whether a referendum of

Act 381 is possible, because the act makes "appropriations for


state institutions." 


     When construing provisions of our constitution, this


Court uses the rule of "common understanding." See American


Axle & Mfg, Inc v Hamtramck, 461 Mich 352, 362; 604 NW2d 330


(2000); Federated Publications, Inc v Michigan State Univ Bd


of Trustees, 460 Mich 75, 84; 594 NW2d 491 (1999). The rule


requires "ascertain[ing] as best the Court may the general


understanding and therefore the uppermost or dominant purpose


of the people when they approved the provision or provisions


. . . ." Michigan Farm Bureau v Secretary of State, 379 Mich

387, 390-391; 151 NW2d 797 (1967); Traverse City Sch Dist v

Attorney Gen, 384 Mich 390, 405-406; 185 NW2d 9 (1971). 


     We start by examining the provision's plain meaning as

understood by its ratifiers at the time of its adoption. See

American Axle & Mfg, Inc, supra at 362.       Article 2, § 9


provides:

          The people reserve to themselves the power to

     propose laws and to enact and reject laws, called

     the initiative, and the power to approve or reject

     laws enacted by the legislature, called the

     referendum. The power of initiative extends only to

     laws which the legislature may enact under this

     constitution. The power of referendum does not

     extend to acts making appropriations for state

     institutions or to meet deficiencies in state funds

     and must be invoked in the manner prescribed by law

     within 90 days following the final adjournment of

     the legislative session at which the law was

     enacted. To invoke the initiative or referendum,

     petitions signed by a number of registered

     electors,   not  less   than   eight  percent   for

     initiative and five percent for referendum of the

     total vote cast for all candidates for governor at

     the last preceding general election at which a

     governor was elected shall be required.

      In deciding this case, the majority makes much of the


                              2

fact that Act 381 allocates $1,000,000 "to the department of


state police . . . ." Slip op at 2. It concludes that the


$1,000,000 is an "appropriation" and that the Department of


State Police is a "state institution." See slip op at 2. Thus,


it reasons, the power of referendum does not extend to Act


381. I disagree.


     The majority's error, in my view, arises in part because


it fails to examine carefully the meaning of the phrase "acts


making appropriations for state institutions." In particular,


it ignores the use of the word "for"       in that phrase. In


essence, it interprets art 2, § 9 to exempt from referendum

any act that makes an appropriation "to" a state institution.

This interpretation not only lacks support from the plain


language of the article, it fails to appreciate the critical

difference between the meanings of "to"1 and "for."

     I would interpret art 2, § 9 to give effect to the words


contained in it. The provision indicates that an act making an

appropriation   is   exempt   from   referendum   only   if   the

appropriation is made "for" state institutions. The dictionary


definition of "for," in pertinent part, is "suiting the

purposes or needs of," "with the object or purpose of."2


"Purpose" is defined as "the reason for which something





     1
      "To" is defined, inter alia, as "used for expressing

destination or appointed end." Random House Webster's College

Dictionary, p 1401 (1995).

     2
      Id. at 519. My use of the word "for" is not as Justice

Markman asserts, "transmuted beyond recognition." The meaning

is straight out of the dictionary.

                               3

exists."3 Thus, a reasonable interpretation of art 2, § 9 is


that legislation that contains an appropriation aimed at


satisfying the purpose or reason for which a state institution


exists     is    referendum-proof.      Unless   the   appropriation   is


intended to support the core function of a state institution,


it does not prevent the people from voting on the legislation


in referendum.


     I would adopt this as the most reasonable interpretation


of art 2, § 9.4 Applying it to this case, I would conclude

that Act 381 does not make an appropriation for a state


institution." Of the $1,000,000 that it allocates to the

Department of State Police not a penny serves the central

function        for   which   the   department   exists.   Instead,    the


appropriation implements the specific substantive provisions

of the act.5 None of items funded relates to a core function

of the state police department.6 Thus, giving the words of art


     3
         Id. at 1096.

     4
      In his concurring opinion, Justice Markman makes a

"final query for the dissenters":       How could those who

ratified the constitution have fashioned the words of art 2,

§ 9 more clearly? My response is that no wording change is

needed. Art 2, § 9 means what it says. However, it would

have to be reworded to accurately convey the meaning that

Justice Markman and the majority give it. It would have to be

changed to read: The power of referendum "does not extend to

acts making appropriations to state institutions . . . ."

     5
      Act 381 directs that the $1,000,000 be used, inter alia,

to distribute trigger locks, provide permit application kits,

take photographs of applicants, conduct a public safety

campaign regarding Act 381's requirements, and conduct

fingerprint analysis and comparison reports required under the

Act.

     6
      Although Justice Young opines that the judiciary is ill­
equipped to resolve what a state institution's "core function"

                                                (continued...)

                                       4

2, § 9 and of Act 381 their plain meaning, the Act does not


make       appropriations   "for   state   institutions"   within   the


meaning of the constitution.7


       My interpretation is consistent with this Court's mandate


that the right of referendum should be liberally construed.


See, e.g., Kuhn v Dep't of Treasury, 384 Mich 378, 385; 183


NW2d 796 (1971). Furthermore, it prevents the Legislature from


easily circumventing the people's constitutional referendum


power. With that end in mind, I agree with the views expressed


by the Arizona Supreme Court in Warner v Secretary of State:8

            To hold that an act may not be referred

       because incidentally it provides the funds to

       accomplish the ends it seeks would have the effect

       of practically nullifying the referendum provision

       of the Constitution, because many of the measures

       passed carry appropriations of this character, and

       it would be an easy matter to include such a

       provision in others and bring about the same

       result.

II. The Majority's Unprecedented Interpretation of Art 2, §

   9: A Departure From Decisions In The "Gas Tax" Cases9


       6
      (...continued)

is, see slip op at 32, I have every confidence in the

judiciary's capabilities in this regard. 

       7
      Justice Markman creates a hypothetical example whereby

the Legislature enacts a law that assigns to the Department of

State Police responsibilities belonging to the Department of

Corrections, and then allocates money to that end. See Justice

Markman's slip op at 16. I find his hypothetical example

inapplicable. Act 381 does not transfer functions belonging to

any other agency.

       8
           39 Ariz 203, 215-216; 4 P2d 1000 (1931).

       9
      Detroit Automobile Club v Secretary of State, 230 Mich

623; 203 NW 529 (1925); Moreton v Secretary of State, 240 Mich

584, 592; 216 NW 450 (1927); Good Rds Fed v Bd of State

Canvassers, 333 Mich 352, 360; 53 NW2d 481 (1952); Co Rd

Comm'rs v Bd of State Canvassers, 391 Mich 666; 218 NW2d 144

(1974); Co Rd Ass'n of Michigan v Bd of State Canvassers, 407

                                                (continued...)

                                    5

     The majority asserts that its conclusion, that Act 381


makes appropriations for state institutions, is consistent


with "an unbroken line of decisions from this Court" in the


gas tax cases. See slip op at 2. Upon close inspection, one


finds the assertion untrue.     Rather, as will be seen, it is my


interpretation, and that of my two dissenting colleagues, that


is consistent with the gas tax cases.


     To be sure, the gas tax cases are "unbroken" in the sense


that all constitute proclamations from this Court that the


challenged gas tax      was nonreferable, meaning that it could


not be subject to a referendum vote. Notwithstanding, they do

not support the majority's conclusion.

     In the earliest gas tax case, this Court stated that the


appropriation exception in our constitution was intended to

allow the state to exercise its various core functions free

from financial embarrassment. See Detroit Automobile Club v


Secretary of State, 230 Mich 623, 625; 203 NW 529 (1925). We

explained:

          It is clear that, by permitting immediate

     effect to be given to appropriation acts for state

     institutions, it was their purpose to enable the

     state to exercise its various functions free from

     financial embarrassment. The highway department

     exercises state functions. It was created by the

     Legislature for that purpose. It must have money to

     carry on its activities. Without the money

     appropriated by this act for its immediate use, it

     would cease to function. The constitutional purpose

     was to prevent such a contingency. [Id. at 625-626

     (emphasis added).][10]


     9
      (...continued)

Mich 101, 116-118; 282 NW2d 774 (1979).

     10
          In Detroit Automobile Club, the issue was whether 1925

                                                  (continued...)

                                 6

      This interpretation was reiterated in the second gas tax


case. See Moreton v Secretary of State, 240 Mich 584, 592; 216


NW 450 (1927).     Moreton stated that an act that contained


appropriations to enable state agencies "to function" was


nonreferable. Detroit Automobile Club and Moreton contain the


most thorough discussion of this Court's interpretation of the


appropriation exception to the referendum power.11 These cases


demonstrate that the appropriation exception within art 2, §


9, was prompted by a fear of financial embarrassment.             That


could occur if, by referendum petition, an appropriation for


a   state   institution   were   suspended   pending   a   vote   on   a

legislative act. See Moreton, supra at 592; Detroit Automobile

Club, supra at 625.


      The majority's interpretation of art 2, § 9, impliedly



      10
      (...continued)

PA 1 was subject to referendum under Const 1908, Art 5, § 1,

amendment of 1913 (the predecessor to Const 1963, art 2, § 9),

i.e., whether it made an appropriation "for [a] state

institution[]." In his concurring opinion in this case,

Justice Markman accurately notes that the portion of Detroit

Automobile Club quoted above is taken from this Court's

discussion regarding the meaning of the term "state

institution." Nevertheless, it is clear that that discussion

contained, also, an interpretation of the entire referendum

exception provision. For this reason, I find the Court's

discussion in Detroit Automobile Club useful here.

      11
      In two of the three later gas tax cases, this Court

merely quoted or cited, then followed, our interpretation in

Detroit Automobile Club of the appropriation exception to the

power of referendum. See Michigan Good Rds Federation, supra

at 356-357; Co Rd Assoc, supra at 112-113. In the other gas

tax case, this Court merely cited our holding in Detroit

Automobile Club. See Co Rd Comm'rs, supra at 672. 


     In Todd v Hull, 288 Mich 521, 523-524; 285 NW 46 (1939),

we discussed the predecessor to art 2, § 9 (Const 1908, art 5,

§ 1). However, Todd was a four to four decision and,

therefore, has no precedential effect.

                                  7

rejects this Court's "core function" interpretation of the


phrase in our constitution exempting from referendum "acts


making appropriations for state institutions."12 Therefore, its


decision is not consistent with our prior decisions, at all.


In fact, it seriously departs from them. 


     Given that Detroit Automobile Club represents the only


substantive interpretation by this Court of "acts making


appropriations for state institutions," I agree with Justice


Weaver that we should follow it. Doing so further supports the


conclusion I have articulated: art 2, § 9 was intended to


exempt from referendum only those acts containing grants that

ensure the viability of state agency recipients, or as the

Court of Appeals said, that support the agencies' "core


functions." 246 Mich App ___; ___ NW2d ___ (2001). 

     This interpretation renders the referendum exception

consistent with the fundamental purpose of the general power


of referendum. If the appropriation provision in an act is

essential to a core purpose of a state institution, the act

may not be referred.   The risk is too great that the delay


caused by a referendum vote would embarrass government and be

detrimental to the public. On the other hand, where the


appropriation   provision   is   for   a   lesser   function,   not


essential to the purpose of the department, the embarrassment


problem does not arise. In the latter case, the people's right


to decide policy issues for themselves, which is the core



     12
      Two of the concurring opinions do so, as well. See

Justice Markman's slip op at 2-3; Justice Young's slip op at

12-29. 

                                 8

purpose for which the people reserved the referendum power,


should survive.


     III. Court Consideration of the Legislature's Motives


      In one of the three concurring opinions joining the


majority, my colleague "emphasize[s]" that the Legislature's


subjective motivation for making a $1,000,000 appropriation in


Act 381 "is irrelevant." Chief Justice Corrigan's slip op at


2. In my view, this is an unfortunate exaggeration.


      I acknowledge that, as a general rule, courts do not


inquire     into      the       motives    of        the    Legislature   in   passing


legislation. See Young v Ann Arbor, 267 Mich 241, 243; 255 NW

579 (1934). However, "[c]ourts are not supposed to be blinded

bats." Todd v Hull, 288 Mich 521, 543; 285 NW 46 (1939)


(opinion of Bushnell, J.), quoting State ex rel Pollock v

Becker, 289 Mo 660, ___; 233 SW 641, 646 (1921).13 Hence, I

would      not   be    so       quick      to    eliminate       categorically      the


possibility that this Court may consider, where pertinent,

relevant, and ascertainable, the Legislature's motives in

enacting a statute.


                        IV. Referendum v Initiative

        I find objectionable, also, the palliation offered by two


of   my    colleagues           in   the    majority         that   the   intervening


defendant retains the direct remedy of the initiative process.


Chief Justice Corrigan's slip op at 1; Justice Young's slip op


at   31.    Although        I    agree     that       the    initiative   process    is



      13
      The instant case brings to mind the ancient quotation

that "[t]he voice is Jacob's voice but the hands are the hands

of Esau." Todd, supra at 543, (opinion of Bushnell, J.).

                                                9

available here, I find their observation misplaced.


      First, any alternative remedy that exists is irrelevant


to the issue before us: whether Act 381 constitutes an act


"making appropriations for state institutions" within the


meaning      of   art   2,   §   9.    Moreover,          there    are   real      and


heightened practical difficulties associated with pursuing an


initiative process, as compared with referendum. Not only does


the initiative process require far more petition signatures


than the referendum process, it also involves much more


complicated procedures. Const 1963, art 2, § 9.


      Also, this case presents the exact situation for which

the referendum power was created. The power exists to permit

citizens to suspend or annul laws passed by the Legislature


until the people can vote on the merits of the law. See

Alabama Freight v Hunt, 29 Ariz 419, 424; 242 P2d 658 (1926);

see   also    Const     1963,    art   2,    §   9.   Thus,       if   Act   381    is


referable, it would not become effective until the people

voted it should be the law of this state. Const 1963, art 2,

§ 9.


      The power of initiative, on the other hand, is intended

to protect against a Legislature that fails to act.14 It does


not   suspend     the    effective     date      of   a    law    passed     by    the


Legislature. Const 1963, art 2, § 9. Therefore, even if a


successful initiative drive were pursued, the people would not



      14
      See Comment, Interpretation of initiatives by reference

to similar statutes: Canons of construction do not adequately

measure voter intent, 34 Santa Clara L R 945, 973 (1994),

"legislative inaction is the reason the initiative process was

established." 

                                       10

vote on the law until at least November 2002. By then, Act 381


would     have   been   operative    for     over    sixteen   months    and


potentially thousands of additional concealed weapons would be


carried by thousands more Michiganians. Thus, from intervening


defendant's perspective, the availability of the initiative


process is an unsatisfactory remedy.15


                               V. Conclusion


        For these reasons, and for the reasons given by my two


dissenting       colleagues,   I   believe    that    Act   381   does   not


constitute "acts making appropriations for state institutions"


within the meaning of art 2, § 9. Accordingly, I would affirm

the decision of the Court of Appeals.





     15
      I note, also, that the issue in the instant case is one

of constitutional interpretation.    Accordingly, my opinion

here addresses an issue of constitutional law. It does not

address and ought not be construed to address the merits of

Act 381.

                                    11