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