Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), No. 11

• Court: Supreme Court of Michigan
• Writing for the Court: PER CURIAM; T. G. KAVANAGH; RYAN; LEVIN
• Citation: 242 N.W.2d 3,396 Mich. 465
• Decision Date: 21 May 1976
• Docket Number: No. 11
• Parties: ADVISORY OPINION ON CONSTITUTIONALITY OF 1975 PA 227 (QUESTIONS 2--10).

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242 N.W.2d 3 396 Mich. 465 ADVISORY OPINION ON CONSTITUTIONALITY OF 1975 PA 227
(QUESTIONS 2--10). No. 11.
Supreme Court of Michigan.
May 21, 1976.

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[396 Mich. 475] Charles D. Hackney, Asst. Atty. Gen., argued in support of constitutionality.

[396 Mich. 476] John D. Pirich, Asst. Atty. Gen., argued in opposition to constitutionality.

[396 Mich. 477] PER CURIAM.

In response to the request by the Legislature, on March 29, 1976 this Court issued an advisory opinion ¹ which held 1975 P.A. 227, ² the political reform act, unconstitutional in violation of art. 4, § 24 of Michigan's Constitution. ³ In that opinion we expressed our intention to issue a subsequent opinion to discuss the remaining nine certified questions contained in House Resolution 248 regarding the constitutionality of various provisions contained within 1975 P.A. 227. It is the purpose of this opinion to examine those remaining questions.

An advisory opinion is not precedentially binding upon the Court and represents only the opinions of the parties signatory. See Advisory Opinion re Constitutionality of 1972 P.A. 294, 389 Mich. 441, 208 N.W.2d 469 (1973).

A recent decision of the United States Supreme Court reviewing the constitutionality of Federal campaign legislation has provided substantial guidance in our deliberations. Buckley v. Valeo, --- U.S. ---, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

In our examination we also have been greatly assisted by the fine briefs and oral presentations of the Attorney General and eight amici. Their scholarly contributions are worthy of our highest praise.

The Legislature has undertaken the extremely difficult task of drafting legislation

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which will [396 Mich. 478] bring about meaningful political reform without causing unconstitutional intrusion upon the protected rights of the people. With regard to many of the provisions contained in 1975 P.A. 227 this task has been successfully accomplished. However, other provisions improperly infringe upon constitutional rights and must fall. Still other provisions cannot properly be judged in a factual vacuum and must be tested at a later time.

CERTIFIED QUESTION II--CONSTITUTIONALITY OF SECTION 40

We are asked in certified question II whether § 40 ⁴ is unconstitutional as an infringement upon freedom of speech and the press as guaranteed by Const.1963, art. 1, § 5.

Section 40 of the 1975 P.A. 227 provides the following prohibition:

'Any person filing or aware of the filing of a sworn complaint according to provisions of section 38 shall not publicize any information relative to the sworn complaint. A violation of this section shall be subject to penalty contained in section 178 of this act.'

This state's Constitution (art. 1, § 5) sets forth the following guarantee:

'Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.'

It is our opinion that § 40 is constitutionally infirm.

[396 Mich. 479] Section 31 of the political reform act ⁵ creates the Political Ethics Commission (PEC) as an autonomous body within the Department of State. The PEC is made up of six members appointed by the Governor with the advice and consent of the Senate.

Formal complaints alleging violations of the act or rules promulgated under the act may be filed with the commission. Under § 38 ⁶ the commission is charged with investigating these allegations to determine whether a violation has occurred. During the entire period of the investigation all information relating to the complaint, including any documents or reports in the commission's possession, must be held confidential by the PEC. Matters shall be made public by the PEC upon a final determination that a violation has occurred or if the person whose conduct is under investigation requests the information be made available to the public.

In addition to providing for confidential proceedings before the PEC, § 40 of the act provides that 'Any person filing or aware of the filing of a sworn complaint * * * shall not publicize any information relative to the sworn complaint'. A violation of this section is a felony punishable by a 'fine of not more than $10,000.00, or imprison(ment) for not more than 3 years, or both'. ⁷

No challenge is made to the Legislature's authority to impose confidentiality upon commission members and personnel, or its records and proceedings. Perhaps, as Amicus Michigan Association of Broadcasters suggests, this veil of secrecy 'constitutes the least drastic means for advancing the claimed governmental interests'.

[396 Mich. 480] However, in an effort to augment the confidentiality created by § 38 with the prohibition contained in § 40, the political reform act has improperly imposed restrictions upon the constitutionally protected freedoms of speech and the press.

On its face, § 40 prohibits not only media publication but private communications between two or more persons as well. ⁸ In

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addition the prohibition extends for an indefinite duration. By its terms, § 40 prohibits communication of information even after the information has been made public by the commission or the person under investigation has authorized its revelation.

The Attorney General, in his brief in support of the constitutionality of 1975 P.A. 227, concedes that 'A literal interpretation of § 40 appears to intrude upon the constitutional guarantee of free speech'. However, he invites this Court to read into the statutes certain time limitations to construe the prohibition against publication of information as in effect only until such time as § 38 permits matters to be made public (I.e. upon final determination of the PEC that violation has occurred or person under investigation requests that information be made public).

Even with the limitation suggested by the Attorney General we do not believe § 40 would pass constitutional muster. If public discussion were banned until after the commission concluded its proceedings, it is very possible that violations of the act would not come to the attention of the public until after the election. Further, if the commission concluded that no violation had occurred, [396 Mich. 481] it is not clear when, if ever, the person bringing the complaint could make his case before the public.

In electing persons to serve in positions of public trust, it is fundamental to our system of government that the voters be provided with the information necessary to make informed choices. Section 40 restricts freedom of speech and the media and could impede the flow of vital information to the voter.

Of course, the freedom of speech and of the media has its limitations and is not an absolute right. Near v. Minnesota ex rel Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Whitney v. California, 274 U.S. 357, 371, 47 S.Ct. 641, 71 L.Ed. 1095 (1927). However, when the state seeks to restrict this right, its efforts must be strictly scrutinized. Former Chief Justice Thomas M. Kavanagh, in Kropf v. Sterling Heights, 391 Mich. 139, 157--158, 215 N.W.2d 179, 186 (1974), set forth the principle to guide our deliberations:

'For the State itself to legislate in a manner that affects the individual right of its citizens, The State must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest. Different degrees of State interest are required by the courts, depending upon the type of private interest which is being curtailed. When First Amendment rights are being restricted we require the State to justify its legislation by a 'compelling' State interest.' (Emphasis added.)

Proponents of the constitutionality of § 40 argue that compelling state interests are present. They maintain that confidentiality provided by this section will reduce the possibility that the complaint [396 Mich. 482] system will be abusively used as a means to discredit a candidate or public official with a nonmeritorious complaint. Also they suggest that confidentiality protects against pretrial publicity which could adversely affect an impartial consideration of the complaint and encourages those persons with information to come forward. Finally, they maintain that by keeping matters confidential until it is determined that a violation has occurred it will preserve public confidence in the integrity of the government from being unnecessarily or prematurely diminished.

These are no doubt important considerations but they do not amount to 'compelling state interests' sufficient to justify the substantial restrictions imposed by § 40 on the guarantees of free speech and press.

Possible injury to the reputation of a public official does not afford a basis for repressing speech. See New York Times

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Co. v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Publication and discussion of information relative to proceedings before the PEC does not pose an imminent threat to the administration of its proceedings. There is no jury to be prejudiced by pretrial publicity and the PEC members should be capable of making independent determinations. Finally, while some measure of the confidentiality maintained by the PEC over its proceedings may help preserve the integrity of governmental institutions, a complete ban on public discussion may well do more to destroy than preserve the public's confidence.

Section 40 was conceived as one means of providing fair and honest elections. However, in seeking to accomplish this noble goal the act has impermissibly

infringed upon the freedoms of speech and the press. [396 Mich. 483]

CERTIFIED QUESTION III--CAMPAIGN

ORGANIZATION, EXPENDITURE, AND REPORTS

Certified question III asks:

'Is Chapter 2 of Act No. 227 of the Public Acts of 1975, which requires a specific...