Request for Advisory Opinion on the Constitutionality of 1979 PA 57

281 N.W.2d 322, 407 Mich. 60, 1979 Mich. LEXIS 389

• Court: Michigan Supreme Court
• Decided: July 30, 1979
• Docket: Docket No. 63476
• Status: Published

Opinions

Per Curiam.

The Legislature has requested an advisory opinion concerning its construction of a provision of the Headlee Amendment.¹ The amendment provides in part:

"The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government”,²

and:

"The proportion of total state spending paid to all units of Local Government, taken as a group, shall not be reduced below that proportion in effect in fiscal year 1978-79.”³

1979 PA 57 "implements” the latter provision (§ 30) and provides:

"If the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by a local unit of government, the state payments to this function shall be counted as state spending paid to local units of government.”⁴

A Senate concurrent resolution requests this Court to render an advisory opinion

"on the following questions of law:

"1. Is the construction of a situation in which the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by 'local units of government’ to be 'state spending paid to local units of government’ as stated in section la of House Bill No. 4700 [1979 PA 57] a proper construction for purposes of section 30 of article 9 of the state constitution of 1963?

"2. Does section la of House Bill No. 4700 violate either the 'Equal protection’ or 'Due process’ provisions of either the Federal or State constitutions as that section applies to 'local units of government’?”

An appropriation bill which has been enacted by the Legislature, but not signed by the Governor, has been called to our attention because it refers to this legislation. It (HB 4277) provides that some of its provisions shall not take effect unless "the supreme court determines in an advisory opinion that the construction” set forth in § la of 1979 PA 57 "is proper and consistent with section 30” and does not violate the Due Process or Equal Protection Clauses.⁵

This Court declines to give the advisory opinion requested because:

1) The questions are stated only in general terms; the request fails to particularize the claims of unconstitutionality:

"As suggested by the 'important questions of law’ requirement, the request for an advisory opinion must 'particularize any claims of unconstitutionality’. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 484; [208 NW2d 469 (1973);] Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich 41, 53; 228 NW2d 772 (1975). A request stated too broadly cannot be considered. Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich 916 (1975).” Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395 Mich 148, 149; 235 NW2d 321 (1975).

2) The questions "are so broad that any advisory opinion of the Court would depend for resolution on whatever particular factual situations the Court would be forced to hypothesize”.⁶

3) When this Court has heretofore agreed to render an advisory opinion it has been able to draw on precedents established in adversary litigation in parallel contexts concerning the constitutional issue presented. An extensive jurisprudence developed in adversary litigation would guide this Court in rendering an advisory opinion on the Equal Protection and Due Process questions. There is no history of adversary litigation or jurisprudence so developed to guide the Court in applying the Headlee limitations on the taxing and appropriation powers. Considering the complexity of the Headlee Amendment we feel it would be rash to attempt to formulate a jurisprudence through advisory opinions.

4) The Headlee Amendment states that "[a]ny taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article”.⁷ This Court should not appear to preempt or preclude such an action by prematurely, in a non-adversary context and in a factual and jurisprudential void, prejudging a potential taxpayer action in a proceeding to which no taxpayer is a party.

This Court, in responding to a prior request for an advisory opinion concerning a legislative construction of the Headlee Amendment,⁸ declared that "it would be an inappropriate exercise of its discretion”⁹ to provide an advisory opinion.

5) The Court may be requested to render an advisory opinion only concerning "the constitutionality of legislation” and then only "after it has been enacted into law” but before its effective date.¹⁰ Section la of 1979 PA 57 is tied in with § 44 of HB 4277, the effectiveness of which depends on this Court "determining” in an advisory opinion that the construction in § la is proper and consistent with and not violative of constitutional limitations.¹¹ The tie-in with HB 4277 is contrary to the spirit and intendment of the after-enactment limitation on this Court’s power to render an advisory opinion. The Constitution provides that the Legislature and the Governor shall participate in the enactment of laws, and does not provide for participation by this Court in that process. A bill which does not become a law unless this Court takes some action has not "been enacted into law” within the meaning of this constitutional provision.

Accordingly, because the potential claims of unconstitutionality are not particularized, because there is a factual and jurisprudential void, because a premature construction of the Headlee Amendment may embarrass the right especially reserved by that amendment to taxpayers to bring actions in the Court of Appeals, and because the request in part affects legislation such as HB 4277, the effectiveness of which depends on this Court agreeing to this request and responding in a manner predetermined by the Legislature, a majority of this Court is unable, being fully mindful of the importance of the questions involved, and with due respect to the Legislature, to grant the request to render an advisory opinion.

As stated in declining an earlier request for an advisory opinion: "The Court stands ready to examine carefully and to resolve expeditiously any controversy that comes to it out of application of [the Headlee Amendment and legislation pertinent thereto] in a factual setting.”¹²

Kavanagh, Levin, Ryan, and Blair Moody, Jr., JJ., concurred.

1 Const 1963, art 9, §§ 25-34.

2 Id., §25.

3 Id, §30.

4 1979 PA 57, § la.

5 HB 4277, § 44, which provides:

"Sections 36 and 37 shall not take effect unless the supreme court determines in an advisory opinion that the construction of section la in House Bill No. 4700 of the 1979 regular session of the legislature is proper and consistent with section 30 of article 9 of the state constitution of 1963 and does not violate the due process or equal protection provisions of the federal constitution or the state constitution of 1963.”

6 Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich 916 (1975).

Similarly, see Request for Advisory Opinion on Constitutionality of 1978 PA 33, 402 Mich 968 (1978), declining to render an advisory opinion on legislation concerning pornography where this Court said:

"The Court’s traditional role is to resolve only actual controversies where the stakes of the parties are committed and the issues developed in adversary proceedings. Const 1963, art 3, § 8 is 'a departure from the historic judicial scheme’ that was intended to be used 'sparingly’. Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich 83, 86 [260 NW2d 436] (1977). An advisory opinion is not precedentially binding on the Court. It represents only the opinions of the parties signatory framed in a factual void.”

7 Const 1963, art 9, § 32.

8 The request concerned 1978 PA 529 and its construction of the second paragraph of Const 1963, art 9, § 31 added by the Headlee Amendment and ‘ the amendment of Const 1963, art 9, § 6 by the Headlee Amendment.

9 Request for Advisory Opinion on Constitutionality of 1978 PA 529, 405 Mich 1001 (1979). Similarly, see the order following thereon which denied a similar request by the Governor.

10 Const 1963, art 3, § 8.

11 See fn 5, supra.

12 Request for Advisory Opinion on Constitutionality of 1978 PA 33} supra.