Blank v. Department of Corrections, Docket No. 109477, Calendar No. 8.

CourtSupreme Court of Michigan
Citation462 Mich. 103,611 N.W.2d 530
Docket NumberDocket No. 109477, Calendar No. 8.
PartiesArthur R. BLANK, David Leroy Davis and Steve Alan Laird, Petitioners-Appellants, v. DEPARTMENT OF CORRECTIONS and Office of Regulatory Reform, Respondents-Appellees.
Decision Date20 June 2000

611 N.W.2d 530
462 Mich. 103

Arthur R. BLANK, David Leroy Davis and Steve Alan Laird, Petitioners-Appellants,
DEPARTMENT OF CORRECTIONS and Office of Regulatory Reform, Respondents-Appellees

Docket No. 109477, Calendar No. 8.

Supreme Court of Michigan.

Argued October 13, 1999.

Decided June 20, 2000.

611 N.W.2d 533
Prison Legal Services of Michigan, Inc. (by Sandra L. Girard), Jackson, for the petitioners

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Matthew H. Rick, Assistant Attorney General, Lansing, for defendants-appellees.

Daniel Bambery and David Oppliger, Lansing, for amicus curiae Joint Committee on Administrative Rules.

White, Przybylowicz, Schneider & Baird, P.C. (by Kathleen Corkin Boyle and Thomas A. Baird), Okemos, for amicus curiae Michigan Education Association.

Fraser, Trebilcock, Davis & Foster, P.C. (by Brandon W. Zuk), Lansing, for amici Association, Michigan Association of Governmental Employees, Alfred Neal, and Michael L. Zimmerman.

611 N.W.2d 531

611 N.W.2d 532


We granted leave in this case to review a 1997 Court of Appeals decision1 in which that Court held unconstitutional §§ 45 and 46 of the Administrative Procedures Act2 (APA). I would affirm in part.


In 1977, the Legislature enacted an amendment to the APA. It required administrative agencies to obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules. The statute now states in relevant part:

(8) If the committee approves the proposed rule within the time period provided by subsection (6), the committee shall attach a certificate of its approval to all copies of the rule bearing certificates except 1 and transmit those copies to the agency.
(9) If, within the time period provided by subsection (6), the committee disapproves the proposed rule or the committee chairperson certifies an impasse after votes for approval and disapproval have failed to receive concurrent majorities, the committee shall immediately report that fact to the legislature and return the rule to the agency. The agency shall not adopt or promulgate the rule unless 1 of the following occurs:
(a) The legislature adopts a concurrent resolution approving the rule within 60 days after the committee report has been received by, and read into the respective journal of, each house.
(b) The committee subsequently approves the rule.
10) If the time permitted by this section expires and the committee has not taken action under either subsection (8) or (9), then the committee shall return the proposed rules to the agency. The chairperson and alternate chairperson shall cause concurrent resolutions approving the rule to be introduced in both houses of the legislature simultaneously. Each house of the legislature shall place the concurrent resolution directly on its calendar. The agency shall not adopt or promulgate the rule unless 1 of the following occurs:
611 N.W.2d 534
a) The legislature adopts a concurrent resolution approving the rule within 60 days after introduction by record roll call vote. The adoption of the concurrent resolution requires a majority of the members elected to and serving in each house of the legislature.
b) The agency resubmits the proposed rule to the committee and the committee approves the rule within the time permitted by this section.

* * *

12) If the committee approves the proposed rule within the time period provided by subsection (6), or the legislature adopts a concurrent resolution approving the rule, the agency, if it wishes to proceed, shall formally adopt the rule pursuant to any applicable statute and make a written record of the adoption. Certificates of approval and adoption shall be attached to at least 6 copies of the rule. [MCL 24.245; MSA 3.560(145).]
An agency shall not file a rule ... until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule. [MCL 24.246(1); MSA 3.560(146)(1).]

Governor Milliken promptly requested an advisory opinion on the constitutionality of the amendments, but this Court declined, stating: "The Court stands ready to examine carefully, and to resolve expeditiously, any controversy that comes to it out of application of 1977 PA 108 in a factual setting." Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich. 83, 87, 260 N.W.2d 436 (1977). That opportunity is now before us.

In 1995, the Department of Corrections (DOC) proposed a series of administrative rules that limited the number and type of persons who could visit a prison inmate. DOC then submitted its proposed rules to the Joint Committee on Administrative Rules (JCAR). At public hearings before JCAR, prisoner rights groups, prisoners' relatives, and other interested persons expressed vigorous opposition to the proposed rules. JCAR did not approve the rules and scheduled more hearings.

DOC then withdrew the proposed rules from JCAR and adopted them without JCAR's approval. DOC forwarded the rules to the Governor and the Office of Regulatory Reform, which, in turn, sent them to the Secretary of State. The rules then became effective without a certificate of legislative or JCAR approval.

In the wake of these events, prison inmates brought actions in the Jackson and Ingham Circuit Courts, challenging the validity of the new visitation rules. They asserted that DOC had enacted the rules in violation of the legislative oversight provisions of the APA and that the rules were unconstitutional. Both courts denied relief.

After consolidating the two cases, the Court of Appeals affirmed. It held that §§ 45 and 46 of the APA are unconstitutional and void. The procedures they establish, that effectively empower JCAR to veto administrative rules, fail to satisfy the enactment and presentment requirements of the Michigan Constitution.3 222 Mich. App. at 397-398, 564 N.W.2d 130.

The panel went on to hold that the authority granted to JCAR violates the doctrine of separation of powers. It contains no provision for presentment to the Governor for approval of the Legislature's veto of a rule. Id. at 398, 564 N.W.2d 130. The panel's holding severed §§ 45 and 46 from the APA and rendered them void. Id. at 402, 564 N.W.2d 130. In addition, the Court of Appeals found DOC's new visitation rules valid and enforceable. They were promulgated in compliance with DOC's enabling statute, as well as with the procedures enunciated in the APA. Id.

611 N.W.2d 535
We granted leave. 459 Mich. 879, 586 N.W.2d 743 (1998)



The first issue before us is whether §§ 45 and 46 of the APA violate the Michigan Constitution by requiring that a joint legislative committee, or the Legislature itself, approve new administrative rules. In making this determination, I recognize that we exercise our power to declare a statute unconstitutional only when the violation is clear. Gauthier v. Campbell, Wyant & Cannon Foundry Co., 360 Mich. 510, 515, 104 N.W.2d 182 (1960). We review the constitutionality of statutes de novo. McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999).

The Michigan Constitution contains a provision that separates the powers of the state among three branches of state government. It provides:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const. 1963, art. 3, § 2.]

The Michigan Constitution vests the legislative power in the Senate and the House of Representatives. Const. 1963, art. 4, § 1. The constitution provides that "[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house." Const. 1963, art. 4 § 26. In addition, "[e]very bill passed by the legislature shall be presented to the governor before it becomes law...." Const. 1963, art. 4, §33. These provisions of Const. 1963, art. 4, are the enactment and presentment requirements of the Michigan Constitution.4

The Legislature's statutory delegation of authority to executive branch agencies to adopt rules and regulations consistent with the purpose of the statute does not violate the separation of powers provision. Coffman v. State Bd. of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951); In re Quality of Service Standards for Regulated Telecommunication Services, 204 Mich.App. 607, 516 N.W.2d 142 (1994). The issue here is whether the Legislature, upon delegating such authority, may retain the right to approve or disapprove rules proposed by executive branch agencies.5

The United States Supreme Court has ruled that such oversight is not permissible because of the bicameralism and presentment requirements of the federal constitution. Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 956, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). In Chadha, the Court addressed the constitutionality of a resolution passed by the United States House of Representatives pursuant to § 244(c)(2)6 of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. The resolution overrode the Attorney General's decision to suspend the deportation of an individual.

The Court found that the House of Representative's action was inherently legislative in nature. For support, the Court made four observations. First, the action

611 N.W.2d 536
"had the purpose and effect of altering ... legal rights, duties and relations of persons... outside the legislative branch." Id. at 952, 103 S.Ct. 2764. Second, the action supplanted legislative action. The only way the House could have obtained the same result would have been by enacting legislation. Id. at 952-954, 103 S.Ct. 2764. Third, the House's action involved...

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