Automobile Club of Michigan Committee for Lower Rates Now v. Secretary of State

• Decision Date: 27 August 1992
• Docket Number: Docket No. 154812
• Citation: 491 N.W.2d 269,195 Mich.App. 613
• Parties: AUTOMOBILE CLUB OF MICHIGAN COMMITTEE FOR LOWER RATES NOW, Plaintiff-Appellant, v. SECRETARY OF STATE and Board of State Canvassers, Defendants-Appellees, and Elmer L. Cerano, Theodore C. Klinger, Dohn R. Hoyle, Elizabeth J. Arnovits, William R. Szafarczyk, Carolyn Supercynzki, Anthony J. Rothschold, Charles T. Jax, Thomas Lonergan and Michael Funke, Advocacy Organization for Patients and Providers, Fairness & Accountability in Insurance Reform, Michigan Citizens Lobby, and Michigan Chamber of Commerce, Intervenors Defendants-Appellees (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 269

491 N.W.2d 269

195 Mich.App. 613

AUTOMOBILE CLUB OF MICHIGAN COMMITTEE FOR LOWER RATES NOW Plaintiff-Appellant, v. SECRETARY OF STATE and Board of State Canvassers Defendants-Appellees and Elmer L. Cerano, Theodore C. Klinger, Dohn R. Hoyle Elizabeth J. Arnovits, William R. Szafarczyk, Carolyn Supercynzki, Anthony J. Rothschold, Charles T. Jax, Thomas Lonergan and Michael Funke, Advocacy Organization for Patients and Providers, Fairness & Accountability in Insurance Reform, Michigan Citizens Lobby, and Michigan Chamber of Commerce, Intervenors Defendants-Appellees (On Remand).

Docket No. 154812.

Court of Appeals of Michigan.

Submitted Aug. 25, 1992, at Detroit.

Decided Aug. 27, 1992, at 9:00 a.m.

Released for Publication Nov. 19, 1992.

Dickinson, Wright, Moon, Van Dusen & Freeman by Peter H. Ellsworth, Jeffery V. Stuckey, and William C. Bertrand, Jr., and Miller, Canfield, Paddock & Stone by Michael J. Hodge and Kevin J. Moody, Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Gary P. Gordon, Asst. Atty. Gen., for defendants-appellees.

Honigman Miller Schwartz & Cohn by John D. Pirich, Timothy Sawyer Knowlton, and Sandra L. Jasinski, Lansing, for intervenors defendants-appellees.

Before SAWYER, P.J., and MacKENZIE and NEFF, JJ.

ON REMAND

PER CURIAM.

Pursuant to the Michigan Supreme Court's July 30, 1992, order of remand, we are called upon to give plenary consideration to "the issues of whether the State Board of Canvassers lacks the authority to consider issues other than whether there are sufficient valid signatures to qualify the proposal for certification and to consider the intervening defendants' claim that the proposal is invalid because of defects other than the signature requirement." 440 Mich. 892, 487 N.W.2d 410 (1992).

Notwithstanding the extensive briefs and appendices, the issues presented are fairly straightforward. The state's largest automobile insurer, AAA Michigan, created the Automobile Club of Michigan Committee for Lower Rates Now, with headquarters at the same location as the insurance company. This committee then retained a professional organization to circulate initiative petitions designed to amend the Insurance Code in a manner that would ostensibly lower automobile insurance rates for the benefit of the motoring public, but which intervening defendants contend would be in a manner solely beneficial to the economic bottom line of automobile insurance companies, principally AAA.

I

The petitions, as circulated, consist of six pages. The last five pages constitute the text of the proposed legislation. On these pages, there is neither a title to the legislation nor any reference to a title.

On the cover page, however, the opening paragraph sets forth what proponents of the initiative contend should be treated as the title:

A Petition for amending certain provisions of the Michigan Insurance Laws, specifically sections 2109, 2111 and 2111a of Chapter 21, commonly known as the Essential Insurance Act, sections 3101, 3104, 3107, 3109a, 3111, 3115, and 3135 of Chapter 31, commonly known as the No-Fault Insurance Act, section 202 of Chapter 2 and section 3009 of Chapter 30, and for enacting section 3010 of Chapter 30.

What follows is a paragraph purporting to describe the principal features of the legislation proposed to be enacted through the initiative process, which intervening defendants contend is misleading.

Intervening defendants identify two other purported defects. The initiative proposes to make substantial changes to Sec. 2111 of the Insurance Code, but the body of only certain affected subsections, not the entire section as rewritten, is included in the "full text of the proposed legislation" on the pages attached to the initiative petition. As a result, intervening defendants claim that Sec. 2111 is not "republished at length" as required by Const. 1963, art. 4, Sec. 25.

Intervening defendants also contend that a statement in the petition that it is "paid for by Automobile Club of Michigan Committee for Lower Rates Now" constitutes a prohibited form of extraneous material designed to improperly influence registered voters to sign the petition. Thus, intervening defendants claim that "placement of a partisan political description directly on the petition form violates Secs. 482 and 544d [of the Election Law ¹ ] by incorporating political campaign material on the petition, itself."

II

With regard to the requirement that the initiative petition contain a title, Const. 1963, art. 2, Sec. 9, unlike its predecessor, Const. 1908, art. 5, Sec. 1, does not go into detail regarding the form of initiative petitions. Instead, the current constitution, in the last sentence of that section, provides that "[t]he Legislature shall implement the provisions of this section." One limit, however, imposed in the first clause of art. 2, Sec. 9, is that the "power of initiative extends only to laws which the Legislature may enact under this constitution."

In that respect, identical language appeared in Const. 1908, art. 5, Sec. 1. This language formed the basis for the holding in Leininger v. Secretary of State, 316 Mich. 644, 648, 26 N.W.2d 348 (1947), that an initiative petition lacking a statutory title was fatally defective and could not be submitted to the electorate for approval, by virtue of the provision of Const. 1908, art. 5, Sec. 21 [now Const. 1963, art. 4, Sec. 24], that "[n]o law shall embrace more than 1 object, which shall be expressed in its title." The Leininger Court held:

This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of section 1 [of art. 5], that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature....

* * * * * *

It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of section 1 against legislative change or amendment. [Id. at 648-649, 26 N.W.2d 348.]

The Leininger Court noted that it was carving out a very narrow exception to the general rule of Hamilton v. Secretary of State, 212 Mich. 31, 179 N.W. 553 (1920), where it was held that substantive constitutional challenges to legislation proposed through the petition process are premature if presented before apparent adoption of such measures at an appropriate general election. Substantive constitutional questions are to be resolved in conjunction with the usual rules of constitutional adjudication, which require, among other things, concrete facts against which to test the measure and a party with standing to raise the constitutional challenge.

If a proposed initiative contains a title, but it is alleged that the title is defective for one of a variety of reasons, the rule of Hamilton supersedes the rule of Leininger, and the courts will decline to consider whether the title fails to meet the constitutional requirements, thereby invalidating the legislation, before submission of the proposed legislation to the people. Beechnau v. Secretary of State, 42 Mich.App. 328, 201 N.W.2d 699 (1972).

In Newsome v. Bd. of State Canvassers, 69 Mich.App. 725, 730-731, 245 N.W.2d 374 (1976), this Court said:

It is plaintiffs' position that the petitions failed constitutionally because if they contain a title, it embraces more than one object. On the authority of Beechnau v. Secretary of State, 42 Mich.App. 328; 201 N.W.2d 699 (1972), we decline to pass on this question prior to submission of the proposed legislation of [sic] the people. We note parenthetically that the plaintiffs' reliance upon Leininger v. Secretary of State, 316 Mich. 644; 26 N.W.2d 348 (1947), is misplaced. The holding there rested upon a specific provision of the Constitution of 1908. The Constitution of 1963 retains no such provision. Furthermore, the petition in Leininger contained no title whatsoever. The petition before us is in fact headed by a clear statement of the object of the proposed measure. Moreover, the Supreme Court has specifically disapproved of Leininger, supra, see Kuhn [v. Dep't of Treasury, 384 Mich. 378, 183 N.W.2d 796 (1971).]

In holding that Leininger is no longer good law, the Newsome panel went too far. In Kuhn v. Dep't of Treasury, 384 Mich. 378, 385, 183 N.W.2d 796 (1971), the Supreme Court said, in relevant part:

Previous decisions of this Court requiring strict compliance with constitutionally mandated procedures for exercise of the powers of initiative and referendum should not be read as limiting the occasions upon which those powers may be exercised. See Leininger v. Secretary of State, [316 Mich. 644, 26 N.W.2d 348 (1947) ]; Scott v. Secretary of State, [202 Mich. 629, 168 N.W. 709 (1918) ]; Thompson v. Secretary of State, [192 Mich. 512, 159 N.W. 65 (1916) ].¹¹

11. "The cited cases deal with the detailed procedures set forth in the 1908 Constitution, as amended, for the exercise of the powers of initiative and referendum. Michigan Const. 1908, art. 5, Sec. 1. The present Constitution largely eliminates such procedural detail. Michigan Const. 1963, art. 2, Sec. 9. See the Convention Comments following the section.

In Leininger, the majority did refer to specific language in Const. 1908, art. 5, Sec. 1, which has no counterpart in the present constitutional initiative provision, namely, "Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure." However, as the earlier quotations from Leininger established, that was merely one of two alternative bases for the ultimate holding that a petition with no title is defective.

The...