Ferency v. Secretary of State

297 N.W.2d 544, 409 Mich. 569, 1980 Mich. LEXIS 252

• Court: Michigan Supreme Court
• Decided: October 3, 1980
• Docket: Docket Nos. 65764, 65765, 65882. (Calendar No. 1, 2)
• Status: Published

Opinions

Per Curiam.

On September 4, 1980, the Ingham Circuit Court issued an order which, inter alia, stated:

"[T]his court declares the Tisch’ proposal, and any and all such petitions filed with defendant Secretary of State are legally insufficient and that the said proposal is not entitled to placement on the ballot scheduled for the November, 1980, General Election.”

The order further provided that the defendant Secretary of State, the defendant Director of Elections, and the defendant Board of State Canvassers were to take "no steps whatsoever to effectuate placement of such proposal on said ballot”. Finally, the order provided that the defendant Board of State Canvassers was "enjoined and restrained from certifying for placement on the ballot the so-called 'Tisch’ amendment”.

The basis for the circuit court’s ruling was its finding that the petitions which were circulated to gather signatures in support of the proposed constitutional amendment did not comply with the requirement of MCL 168.482; MSA 6.1482¹ in that all existing provisions of the Constitution which the proposal would alter or abrogate were not set forth therein. Specifically, the circuit court found that the petitions did not include reference to Const 1963, art 2, § 9; 2 art 4, § l;³ art 4, § 33;⁴ art 4, § 34;⁵ and art 4, § 40.⁶ The circuit court found that each of the aforementioned constitutional provisions would be "altered or abrogated” if the proposed constitutional amendment were adopted.

Defendants Secretary of State, Director of the Elections Division of the Department of State and the Board of State Canvassers, as well as intervening defendant Tisch Coalition for Property Tax Cut in Michigan, Inc., filed claims of appeal, together with requests for ancillary relief, in the Court of Appeals. That same day, September 8, 1980, the defendants and intervening defendant sought leave to appeal to this Court prior to the decision of the Court of Appeals. By order dated September 10, 1980, we granted leave to appeal.

I

As early as 1918, it had been recognized by this Court that:

"Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution.”⁷

Const 1963, art 12, § 2 provides for the exercise of the right of popular amendment and describes the conditions imposed on that right.⁸ This section is self-executing — it does not depend upon statutory implementation.⁹ And, as this Court has recently reaffirmed:

" 'It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v St Clair County Election Commission, [334 Mich 258; 54 NW2d 425 (1952)]; Hamilton v Secretary of State, [227 Mich 111, 125; 198 NW 843 (1924)]:

"' " 'The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.’ ” ’ ”¹⁰

The rationale for making the right of popular amendment by initiative self-executing, and for judicial care in insuring that the Legislature does not unduly burden the exercise of the right, was expressed in the lead opinion in Hamilton v Secretary of State:11

"The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that:

" 'A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.’ Morley v Thayer, 3 F 737 [CC D Mass, 1880]; People v Rumsey, 64 Ill 44 [1872]; Brien v Williamson, [8 Miss (7 How) 14 (1843)].”

The Constitution does not require that the petition set out existing provisions that will be altered or abrogated. The Constitution places the burden of publishing this information on the state, as a means of informing the voters.¹² The Legislature, apparently feeling it proper to extend the educational function of this requirement to persons signing petitions, has placed the burden on petitioners, allegedly pursuant to the constitutional provision that "[a]ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law”.¹³

Assuming, arguendo, that a new requirement regarding substantive content is a regulation of form, and assuming that the Legislature can impose minimal burdens to keep the process fair, open and informed,¹⁴ the burden imposed cannot unduly restrict the exercise of the right.

In construing the burden placed on petitioners by § 482, we are mindful that

"under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed.”¹⁵

Further, where, as here, there is doubt as to the meaning of legislation regulating the reserved right of initiative, that doubt is to be resolved in favor of the people’s exercise of the right.¹⁶

II

Historically, our interpretation of the words "alter or abrogate” has occurred in the context of the constitutional publishing requirement.

In School Dist of Pontiac v Pontiac, 262 Mich 338; 247 NW 474, 787 (1933), this Court was faced with a challenge to an amendment to the Constitution of 1908. The amendment was proposed by the requisite number of qualified electors, was submitted at the November, 1932, election, and received the necessary votes for its adoption. Const 1908, art 17, § 3 provided:

"All proposed amendments to the constitution submitted to the electors shall be published in full, with any existing provisions of the constitution which would be altered or abrogated thereby, and a copy thereof shall be posted at each registration and election place. Proposed amendments shall also be printed together with any other special questions to be submitted at such election in full on a single ballot separate from the ballot containing the names of candidates or nominees for public office.”

It was argued before this Court that the amendment which was approved by the electors altered or abrogated many other provisions of the Constitution and that the failure to publish those existing provisions nullified the attempted amendment.

In sustaining the validity of the amendment, this Court held:

"In determining what constitutes compliance with the constitutional requirement as to publication, a matter of prime importance is the purpose that prompted the people of the State of Michigan to include such a provision in the Constitution. All will agree that this was a means adopted by which it was believed the elector would be definitely advised as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted. Being so advised, the elector could intelligently determine whether his vote would be for adoption or rejection. But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces ('alters or abrogates’) a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published.” 262 Mich 338, 344.

The principles announced in School Dist of Pontiac v Pontiac were applied in the context of allegedly defective petitions in City of Jackson v Comm’r of Revenue, 316 Mich 694; 26 NW2d 569 (1947). In concluding that the constitutional amendment in that case should not be invalidated, this Court quoted with approval the language found in School Dist of Pontiac v Pontiac.

The case of Carman v Secretary of State, 384 Mich 443; 185 NW2d 1 (1971), is of little assistance to us since in that case the problem was that the petitions proposing the constitutional amendment made no mention of any existing language of the Constitution which would be "altered or abrogated” by the proposed amendment, although the express intent of the proposal was to amend art 8, §2.

Ill

We turn to a construction of the statutory requirement that the petition list existing provisions of the Constitution that it would "alter or abrogate”. The Constitution is a broad, interrelated document composed largely of general principles of government rather than narrow, detailed requirements.

As interpreted by Ferency and the circuit court, § 482 conditions the right of initiative upon a correct assessment by the petitioner of the impact the proposed amendment has on these general, interrelated principles. The task which this Court often finds so difficult is imposed on the petitioner, with the risk of a voided petition for an incorrect resolution. The difficulty, if not impossibility, of meeting this requirement is demonstrated by the history of this case. Ferency, himself an able attorney, identified at least seven constitutional provisions that would be altered by the proposed amendment. The circuit court identified at least five provisions, only one of which had been listed by Ferency. Doubtless, plausible arguments could be made that additional provisions will be altered.

Correctly interpreting the Constitution to identify all provisions affected by a proposed amendment is too onerous a burden to place upon the right of popular amendment. Nor can it be justified as a means of educating persons signing petitions. A petitioner faced with the prospect of having his or her entire petition drive nullified by the failure to list a constitutional provision will, out of caution, err on the side of inclusion. Petitions will become a maze of constitutional provisions, if indeed petitioners will not simply attach copies of the entire Constitution to their petitions. The provisions expressly being amended may be lost among those less directly affected. Few people will understand, without extensive explanation, how or how much a particular listed provision is being altered.

IV

We have examined the provisions of our Constitution which the plaintiff claims the proposed amendment would "alter or abrogate” if adopted, as well as those which the circuit court found would be "altered or abrogated” if the proposed amendment were to be adopted. While we agree that virtually all of these provisions will, to one degree or another, be affected by the proposed constitutional amendment,¹⁷ should it be adopted, we cannot conclude that any of these provisions would be "altered or abrogated”.

We hold that it is only where the proposed amendment would directly "alter or abrogate” ("amend or replace”) a specific provision or provisions of the existing Constitution that the provision or provisions must be noted on the petitions. An existing constitutional provision is altered or abrogated if the proposed amendment would add to, delete from, or change the existing wording of the provision, or would render it wholly inoperative. Here the petitions which were circulated notified the prospective signer that the proposed amendment would "alter or abrogate” present art 9, § 1, § 2, § 3 and § 31. We are persuaded that those are the provisions which the proposed amendment will directly "alter or abrogate” if the amendment is adopted.

In the language employed by this Court in School Dist of Pontiac v Pontiac, supra, the provisions cited by the plaintiff and by the circuit court, will remain "operative, though possibly they may need thereafter to be construed in conjunction with the amending provision^].” See also Graham v Miller, 348 Mich 684, 694; 84 NW2d 46 (1957).

Since the petitions which were circulated clearly specified those provisions of the Constitution which the proposed amendment would directly "alter or abrogate” if the amendment were adopted, we hold that the requirements of MCL 168.482; MSA 6.1482 were met. To adopt a more expansive definition of the "alter or abrogate” requirement would effectively require a petition circulator, in order to insure against subsequent judicial nullification of the effort, to secure a judicial determination of which provisions of the existing Constitution the proposed amendment would "alter or abrogate”. We do not believe that such a state of affairs was contemplated by the Legislature in promulgating the statute.

V

Plaintiff argues that the instant controversy is moot because defendant Board of State Canvassers failed to certify the petition within 60 days of the general election as required by Const 1963, art 12, § 2 and MCL 168.477; MSA 6.1477.¹⁸ We conclude that this contention is without merit.

This Court has previously confronted a claim concerning an analogous constitutional deadline and concluded, under seemingly similar circumstances, that the petition proponent was not entitled to relief. Kuhn v Dep’t of Treasury, 384 Mich 378; 183 NW2d 796 (1971). The difference between the Kuhn case and the instant controversy helps explain our decision today.

In Kuhn, plaintiffs asked us to determine whether the Income Tax Act of 1967, MCL 206.1 et seq.; MSA 7.557(101) et seq., was subject to the referendum power of the people. The facts in Kuhn reveal the following: Plaintiff Kuhn took no action while the courts deliberated. He did not collect any petition signatures within prescribed time limitations; nor did he invoke the emergency consideration of this Court. Further, before this Court could resolve the issue, the constitutional time limit, requiring that the petition process be completed within 90 days following the legislative session at which the target act was passed, had long expired.

Therefore, even though we ultimately decided that voters could approve or reject the Income Tax Act through their right of referendum, we gave plaintiff no relief. In explaining this result, we quoted with approval from Judge, now Justice, Levin’s opinion in the Court of Appeals:

" 'In a case of this kind the moving party is entitled to an expeditious disposition by the courts so that the right of referendum guaranteed by the constitution is not jeopardized. The plaintiffs in this case obtained such an expeditious disposition at the trial court level.

" 'Their claim of appeal was filed October 19, 1967. No application for emergency consideration by our Court or for by-pass of our Court or for emergency consideration was filed with the Supreme Court.

" 'There is no provision in the constitution extending the time within which a referendum may be sought by reason of the pendency of litigation and it would be extraordinary for the courts to declare such an extension of time. If the plaintiffs desired to exercise the power of referendum they were obliged to proceed within the time provided by the constitution to obtain signatures. It is not claimed that any such effort was made. We conclude that the time for seeking a referendum on the income tax act has expired.’ ” (Emphasis added.) Kuhn, supra, 386-387.

This is the first time since Kuhn that we have faced a question involving a constitutional election deadline in the context of the initiative and referendum process. And because this case presents such unique circumstances, we must regard it as justifying the extraordinary action referred to in Kuhn.

In contrast to Kuhn, intervening defendant Tisch Coalition complied with constitutional dictates. It collected the necessary petition signatures required to place the proposed amendment on the ballot. Further, the Coalition filed its petitions with the Secretary of State at the proper time, 120 days before the election. Const 1963, art 12, § 2.

Defendant Board of State Canvassers also attempted to fulfill its constitutional duties in a timely fashion. The board met on September 5, 1980, the last day for compliance with the certification deadline.

One of the items on the agenda, which defendant was fully prepared to address, was the question of certification of the proposed "Tisch” amendment. But at the same time, the board faced a September 4th circuit court order which prohibited it from taking any action on that same proposed amendment. The board resolved the dilemma by obeying the court order. Thereby the constitutional deadline passed.

Again in contrast to Kuhn, both defendants immediately filed an emergency appeal in this Court, bypassing the Court of Appeals. They did not sit back and wait for the judicial process to proceed according to its normal pace.

In essence, the facts in this case are almost the opposite of those in Kuhn. In Kuhn, the inaction of the plaintiffs who wished to invoke the referendum procedure created the delay. In the instant case, intervening defendant Tisch Coalition did everything the Constitution requires of it. Defendant board was ready to timely perform its constitutional duties, but was prohibited from doing so by the active intervention of the circuit court. In other words, but for court interference, all the constitutional and statutory requirements for presenting the amendment to the voters on November 4 would have been met.

This Court has a tradition of jealously guarding against legislative and administrative encroachment on the people’s right to propose laws and constitutional amendments through the petition process. Wolverine Golf Club v Secretary of State, 384 Mich 461; 185 NW2d 392 (1971). The question now is whether we will protect the process from court interference with procedural deadline requirements as well.

It would be manifestly unfair to hold that because the deadline has passed this Court can afford no relief. Such a decision would encourage opponents of a proposal to try to keep it off the ballot by waiting until the last minute to file a challenge in circuit court.¹⁹ We cannot tolerate either such distortion of the initiative process or such misuse of the judicial process.

In addition, our holding is based on the nature of the constitutional requirement in issue. The 60-day requirement does not relate to the sufficiency or validity of the petitions themselves. We read the time limit as essentially designed to facilitate the electoral process by giving the Secretary of State and county clerks enough time to print and distribute ballots and ready the machinery for election day. See, e.g., Wolverine Golf Club v Secretary of State, 384 Mich 461; 185 NW2d 392 (1971). It should not be used to prevent a proposal from appearing on the ballot when its proponents have done everything the Constitution requires of them.

This is not to say that the 60-day requirement may be circumvented as a matter of course. We do not suspend constitutional directory limits lightly. Only the most extreme circumstances, such as the last-minute active judicial intervention in the instant case, can justify this deviation.

Finally, our decision is consistent with a long line of cases in which the Michigan courts have actively protected and enhanced the initiative and referendum power. Wolverine Golf Club, supra; Kuhn, supra; Newsome v Board of State Canvassers, 69 Mich App 725; 245 NW2d 374 (1976). In effect, we simply repeat today what we have said before: "[Cjonstitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed” and their exercise should be facilitated rather than restricted. Kuhn, supra, 385.

For the foregoing reasons, under the unique circumstances of this case, the expiration of the 60-day deadline does not preclude the certification of the proposed Tisch Amendment.

Accordingly, we reverse the judgment of the Ingham Circuit Court and we direct that the defendants proceed forthwith to attend to the duties prescribed in MCL 168.477; MSA 6.1477 and such other statutory duties as may follow thereon, observing, in each instance, to the maximum extent practicable, the time limits prescribed for the performance of such various duties.

No costs, a public question being involved.

Coleman, C.J., and Kavanagh, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

Per Curiam.

The instant case originated with a complaint filed in the Ingham Circuit Court in which the plaintiff requested the circuit court to rule that the defendants are obliged, pursuant to Const 1963, art 12, § 2,¹ to publish a notice that a proposed amendment to the Constitution (popularly known as the "Tisch amendment”) would, if adopted, "alter or abrogate” existing provisions of the Constitution including, but not limited to art 2, § 9; art 4, §§ 27, 33, 34 and 40; art 6, § 4; art 7, §§ 2 and 21; and art 8, § 35.

On September 25, 1980 the Ingham Circuit Court issued an order which stated in pertinent part:

"Petition for declaratory relief having been filed by the plaintiff, acting in pro per; the court having heard arguments concerning the matter; the court having previously rendered an opinion in the case of [Ferency v Secretary of State], File No. 80-25614-AA, in which the court found that the so-called 'Tisch’ Amendment 'alters or abrogates’ certain provisions of the 1963 Michigan Constitution, including, but not limited to art 2, § 9; art 4, § 1; art 4, § 33; art 4, § 34; and art 4, § 40, which finding is hereby specifically incorporated herein as though recited herein; the court having found further that the foregoing provisions, which would be 'altered or abrogated’ by the 'Tisch’ proposal if adopted, have not been published by the defendant Secretary of State or other defendants herein whereby copies of such publication shall be posted in each polling place and furnished to news media as required by art 12, §2 of the Constitution and as provided by law; and the court being fully advised in the premises;

"Now therefore it is ordered and adjudged that the process for the publication of the 'Tisch’ proposal as filed with the defendant agencies, together with the existing provisions of the state Constitution which would be altered or abrogated thereby as hereinbefore set forth shall commence as required by Constitution and law on or before Tuesday, September 30, 1980, at 4 p.m., except as hereinafter provided; and

"It is further ordered and adjudged that the defendants herein, and each of them, shall take such action as may be necessary to effectuate the publication of the 'Tisch’ proposal and the existing provisions of the Constitution which-would be altered or abrogated thereby as required by Constitution and law; * *

The defendants in this matter, represented by the Attorney General, filed a claim of appeal in the Court of Appeals and at the same time asked this Court to grant leave to appeal prior to a decision of the Court of Appeals. On September 29, 1980 we granted leave to appeal pursuant to the aforementioned request.

The position taken by the circuit court in this matter is essentially consistent with and is a reaffirmation of a prior decision made by that court in a previous lawsuit brought by the same plaintiff against the same defendants. In the previous lawsuit the circuit court declared that the petitions which were circulated in order to place the proposed "Tisch amendment” on the ballot were "legally insufficient” and thus were not entitled to be placed on the ballot scheduled for the November 1980 general election. The rationale expressed by the circuit court for its prior ruling was that the petitions failed to satisfy the requirement of MCL 168.482; MSA 6.1482² that the petitions specify and set forth therein any provisions of the existing Constitution which the proposed amendment, if adopted, would "alter or abrogate”. The circuit court found the petitions to be defective because they failed to state that the proposed amendment, if adopted, would "alter or abrogate” Const 1963, art 2, § 9; art 4, § 1; art 4, § 33; art 4, § 34; and art 4, §40. In that matter we also granted leave to appeal prior to decision by the Court of Appeals and on September 12, 1980 we issued an order which stated:

"This cause having been brought to this Court by appeal prior to the decision of the Court of Appeals and having been argued by counsel and due deliberation having been had thereon by the Court, it is hereby ordered that the judgment of the circuit court for the County of Ingham is reversed and the complaint filed in that court is dismissed. We are persuaded that the burdens imposed upon intervening defendant by the provisions of MCL 168.482 have been met.

"Defendants Secretary of State, Director of Elections and Board of State Canvassers are directed to proceed forthwith to attend to the duties prescribed in Const 1963, art 12, §2 and MCL 168.477 [MSA 6.1477] and such other statutory duties as may follow thereon, observing, in each instance, to the maximum extent practicable, the time limits prescribed for the performance of such various duties.

"Pursuant to GCR 1963, 866.3(c), the Clerk is directed to issue this judgment order forthwith. This judgment is final. The opinion of the Court will follow.

"No costs are to be taxed.”

We have, this day, issued an opinion in which we stated the reasons for concluding that the Ingham Circuit Court erred in ruling that the petitions which were circulated were "insufficient”. We did so because we concluded that the petitions, in notifying the petition signers that the proposed amendment, if adopted, would "alter or abrogate” Const 1963, art 9, § 1, § 2, § 3 and § 31, satisfied the requirements of MCL 168.482; MSA 6.1482. We note that Const 1963, art 12, §2 also requires the Secretary of State to publish those provisions of the existing Constitution which the proposed amendment would, if adopted, "alter or abrogate”.

For the same reasons which we expressed in our opinion that the circuit court erred in finding the petitions to be "insufficient” we find that the circuit court erred in issuing its order in this case. The petitions specified all of the provisions of the existing Constitution which the proposed amendment would directly "alter or abrogate”, if adopted, and thus the circuit court erred in ordering the defendants in this matter to give notice that other provisions of the existing Constitution, not specified in the petitions, would be "altered or abrogated” by the proposed amendment, if adopted.

The difficulty of determining which provisions will be altered is the same for the state as for the petitioner. The risk that the voter will be confused by overinclusion and will lose sight of the provisions being directly amended among those indirectly affected on a publication posted at the polls, is at least as great as the risk that a prospective petition signer will be so confused.

To construe the phrase "altered or abrogated” more broadly in the constitutional context would inject a degree of uncertainty into the constitutional amendment process which could only be resolved by this Court.³ Because the Constitution is a cohesive document whose underlying principles and constituent parts are interrelated, proposed amendments are likely to affect the operation of a number of existing provisions. Determining a proposal’s effect upon an existing provision is likely to be an uncertain exercise for the Secretary of State and Attorney General. The more emphasis is placed on resolving doubts in favor of inclusion, the more diluted the informational effect of the publication will become.

Given the breadth and generality of our Constitution and the interrelation of its provisions, it is difficult to see how an assessment of a proposed amendment’s constitutional impact could be definitively resolved short of an appeal to this Court. One can foresee challenges to the Secretary of State’s selection of provisions to be published being brought not only by opponents of a proposal who argue that other provisions should be included, but also by proponents who claim that overinclusiveness has exaggerated the impact of the proposal in question.

It is hardly proper or practical for this Court to issue advisory opinions on the constitutional implications of every proposed amendment. The people, in reserving to themselves the power to amend their Constitution through a self-executing process, cannot have intended to require state election officials to make complex judgments which would require judicial imprimatur in order to establish that the election officials had properly performed their duties under Const 1963, art 12, § 2.

The reasonable interpretation of what the people intended in requiring publication of the constitutional provisions that would be altered or abrogated by a proposed amendment is that the requirement contemplates the purely ministerial task of setting out the provisions expressly being altered.⁴

We reaffirm for the state, as we have for the petitioner, the narrow publishing requirement set out in School Dist of Pontiac v Pontiac, 262 Mich 338, 344; 247 NW 474, 787 (1933):

"We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces ('alters or abrogates’) a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published.”

We further hold that an existing constitutional provision is altered or abrogated if the proposed amendment would add to, delete from, or change the existing wording of the provision, or would render it wholly inoperative.

Accordingly, we reverse the judgment of the Ingham Circuit Court.

Coleman, C.J., and Kavanagh, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

1 "The size of all petitions mentioned in this section shall be 8-1/2 inches by 13 inches. If the measure to be submitted proposes a constitutional amendment, initiation of legislation, or referendum of legislation, the heading of each part of the petition shall be prepared in the following form and printed in capital letters in 14-point bold face type:

"INITIATIVE PETITION

"AMENDMENT TO THE CONSTITUTION

"OR

"INITIATION OF LEGISLATION

“REFERENDUM OF LEGISLATION

"PROPOSED BY INITIATIVE PETITION

"The full text of the amendment so proposed shall follow, printed in 8-point type. If the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted, preceded by the words:

" 'Provisions of existing constitution altered or abrogated by such proposal if adopted.’

"We, the undersigned qualified and registered electors, city residents in the (strike 1) of. . . .in the county of.... , township state of Michigan, hereby respectively petition for said (amendment to constitution) (initiation of legislation) (referendum of legislation).

"Immediately above the place for signatures, on each part of the petition shall be printed in 12-point type the following warning:

"WARNING

"Whoever knowingly signs this petition more than once, signs a name other than his own, signs when not a qualified and registered elector, or sets opposite his signature on a petition, a date other than the actual date such signature was affixed, is violating the provisions of this act. The remainder of the petition form shall be as provided following the warning in section 544c.”

2 "Initiative and referendum; limitations; appropriations; petitions. Sec. 9. 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.

"Referendum, approval. 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.

"Initiative; duty of legislature, referendum. Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subiect to referendum, as hereinafter provided.

"Legislative rejection of initiated measure; different measure; submission to people. If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. The legislature may reject any measure so proposed by initiative petition and propose a different measure upon the same subject by a yea and nay vote upon separate roll calls, and in such event both measures shall be submitted by such state officer to the electors for approval or rejection at the next general election.

"Initiative or referendum law; effective date, veto, amendment and repeal. Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature. Laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof. If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail.

"Legislative implementation. The legislature shall implement the provisions of this section.”

3 "Legislative power. Sec. 1. The legislative power of the State of Michigan is vested in a senate and a house of representatives.”

4 "Bills passed; approval by governor or veto, reconsideration by legislature. Sec. 33. Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall have 14 days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law. If he does not approve, and the legislature has within that time finally adjourned the session at which the bill was passed, it shall not become law. If he disapproves, and the legislature continues the session at which the bill was passed, he shall return it within such 14-day period with his objections, to the house in which it originated. That house shall enter such objections in full in its journal and reconsider the bill. If two-thirds of the members elected to and serving in that house pass the bill notwithstanding the objections of the governor, it shall be sent with the objections to the other house for reconsideration. The bill shall become law if passed by two-thirds of the members elected to and serving in that house. The vote of each house shall be entered in the journal with the votes and names of the members voting thereon. If any bill is not returned by the governor within such 14-day period, the legislature continuing in session, it shall become law as if he had signed it.”

5 "Bills, referendum. Sec. 34. 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.”

6 "Liquor control commission; liquor tax; local option. Sec. 40. The legislature may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof. The legislature may provide for an excise tax on such sales. Neither the legislature nor the commission may authorize the manufacture or sale of alcoholic beverages in any county in which a majority of the electors voting thereon shall prohibit the same.”

7 Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918).

8 Const 1963, art 12, § 2 provides:

"Amendment by petition and vote of electors. Sec. 2. Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon.

"Submission of proposal; publication. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law.

"Ballot statement of purpose. The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.

"Approval of proposal, effective date; conflicting amendments. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail.”

9 Provisions for popular amendment in prior Michigan constitutions have been found self-executing. Hamilton v Secretary of State, 227 Mich 111; 198 NW 843 (1924); Thompson v Secretary of State, 192 Mich 512; 159 NW 65 (1916). While some of the legislation-like procedural detail was eliminated in the 1963 Constitution, much was retained with the express purpose of preserving the self-executing character. 2 Official Record, Constitutional Convention 1961, pp 2459-2460. See also id., pp 2468-2469. The analogous provision for initiative legislation in Const 1963, art 2, § 9 was held self-executing in spite of the directive in that section, not present in Const 1963, art 12, §2, that "[t]he legislature shall implement the provisions of this section”. Wolverine Golf Club v Secretary of State, 384 Mich 461; 185 NW2d 392 (1971).

10 Wolverine Golf Club, supra, p 466.

Although Wolverine Golf Club involved popularly initiated legislation under Const 1963, art 2, §9, rather than, as here, popularly initiated amendments to the constitution under Const 1963, art 12, §2, the principle that the Legislature may not unduly burden the self-executing constitutional procedure applies equally to both. As the quotation from Hamilton v Secretary of State immediately following in the text illustrates, both are procedures whereby the people reserved to themselves the power to directly change the law, constitutional or statutory, under which they live.

11 Hamilton v Secretary of State, supra, p 130.

12 Const 1963, art 12, § 2, ¶ 2.

13 M., ¶ 1.

14 See State v Campbell, 265 Or 82; 506 P2d 163 (1973), app dis 414 US 803 (1973).

15 Kuhn v Dep’t of Treasury, 384 Mich 378, 385; 183 NW2d 796 (1971).

16 State v Campbell, supra, p 95.

17 See Appendix foldout following Justice Williams’ opinion.

18 The implementing legislation differs slightly from the constitutional mandate in that it specifies that the board must certify the petition two months before the election rather than 60 days prior to the vote. Under the terms of either provision, the time for certifying the petition has passed in this case.

19 This fear should not reflect on the actions of the parties in the instant case. Plaintiff Ferency cannot be faulted for the last-minute judicial intervention. On the contrary, he persistently challenged the proposal long before the 60-day deadline. Further, the lower court cannot be charged with undue delay. The learned trial judge acted as quickly as time would allow.

1 "Amendment by petition and vote of electors. Sec. 2. Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon.

"Submission of proposal; publication. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law.

"Ballot, statement of purpose. The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.

"Approval of proposal, effective date; conflicting amendments. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail.”

2 "The size of all petitions mentioned in this section shall be 8-1/2 inches by 13 inches. If the measure to be submitted proposes a constitutional amendment, initiation of legislation, or referendum of legislation, the heading of each part of the petition shall be prepared in the following form and printed in capital letters in 14-point bold face type:

"REFERENDUM OF LEGISLATION

"The full text of the amendment so proposed shall follow, printed in 8-point type. If the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted, preceded by the words:

" 'Provisions of existing constitution altered or abrogated by such proposal if adopted.’

"We, the undersigned qualified and registered electors, city residents in the (strike 1) of. . . .in the county of.... , township state of Michigan, hereby respectively petition for said (amendment to constitution) (initiation of legislation) (referendum of legislation).

"Immediately above the place for signatures, on each part of the petition shall be printed in 12-point type the following warning:

"Whoever knowingly signs this petition more than once, signs a name other than his own, signs when not a qualified and registered elector, or sets opposite his signature on a petition, a date other than the actual date such signature was affixed, is violating the provisions of this act. The remainder of the petition form shall be as provided following the warning in section 544c.”

3 The consequence of the state’s failure to fulfill its obligations is not the same as follows from a like failure by the petitioner. The failure of the petitioner to meet constitutional obligations, at least where the challenge is brought prior to the vote, aborts the amendment effort. Such cannot be the result of the state’s failure, since it seems clear that the people, in reserving to themselves the power to amend their Constitution through a self-executing process, cannot have intended the state to have the power to bring that process to naught through either inaction or erroneous action by its officials.

4 Apparently the committee responsible for art 12, § 2 at the 1961-1962 Constitutional Convention considered requiring more, but chose instead the narrow obligation. Commenting upon the proposed BrownBoothby substitute to art 12, § 2, which would have eliminated much of the procedural requirements set out in art 12, §2, including the publishing requirement, Mr. Durst, a member of the committee, said:

"Now Mr. Brown completely eliminates those provisions and he eliminates almost all of what is contained on page 4 of the proposal, and here are some things which the committee also thought should be included for a good, self executing provision: one was that the state was required to publish the proposal along with setting forth the material that it was expected to delete or change and that this publication be listed in the polling places. There was considerable discussion that we should go further and require even the preparation of a pro and con pamphlet in order to educate the people. This was decided to be impractical and what is included here was thought to be a minimum that was necessary, that at least it should be set forth clearly and concisely and placed in the polling places and presented to the news media so there would be an opportunity for the people of this state to be thoroughly advised upon the amendment they are voting on.” 2 Official Record, Constitutional Convention 1961, p 2467 (emphasis supplied).