Citizens Protecting Const. v. Sec. of State

• Decision Date: 20 August 2008
• Docket Number: Docket No. 286734.
• Citation: 280 Mich. App. 273,761 N.W.2d 210
• Parties: CITIZENS PROTECTING MICHIGAN'S CONSTITUTION v. SECRETARY OF STATE.
• Court: Court of Appeal of Michigan — District of US

761 N.W.2d 210

280 Mich. App. 273

CITIZENS PROTECTING MICHIGAN'S CONSTITUTION v. SECRETARY OF STATE.

Docket No. 286734.

Court of Appeals of Michigan.

Submitted August 19, 2008, at Lansing.

Decided August 20, 2008, at 9:00 a.m.

Dickinson Wright PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey, and Scott R. Knapp) and Honigman Miller Schwartz and Cohn LLP (by John D. Pirich and Andrea L. Hansen), Lansing, for the plaintiffs.

Michael A. Cox, Attorney General, and Susan I. Leffler, Denise C. Barton, and Heather S. Meingast, Assistant Attorneys General, for the defendants.

Sachs Waldman, P.C. (by Andrew Nickelhoff), Detroit, for Reform Michigan Government Now!.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Mark G. Sands and Joshua S. Smith, Assistant Attorneys General, for the Attorney General.

Before: SCHUETTE, P.J., and WHITBECK and METER, JJ.

PER CURIAM.

Plaintiffs have filed an original action in this Court, seeking a writ of mandamus against defendants Michigan Secretary of State (the Secretary) and the Michigan Board of State Canvassers (the Board). Plaintiffs request a writ directing the Secretary and the Board to reject an initiative petition that intervening defendant Reform Michigan Government Now! (RMGN) has filed. The RMGN initiative petition seeks to place a proposal on the ballot for the November 2008 general election that would modify the Michigan Constitution. We grant the relief sought in the complaint for a writ of mandamus.

I. INTRODUCTION

The issues before this Court concern the interpretation and application of certain provisions of the Michigan Constitution of 1963. The framers of Michigan's Constitution inserted specific provisions, which must be followed, not overlooked, when seeking to modify our state's guiding legal document. As Judge Meter observed several years ago:

The Constitution reigns supreme. It is an immutable, enduring document. Its fundamental integrity cannot be diluted nor tarnished by those who would interpret it in a myopic, transient or parochial fashion. The principles enunciated therein will not change unless we the People so decide by prescribed methods. It is also inviolate. There should be no modification to the sacred document we call our Constitution unless there are no less invasive or intrusive means to accomplish needed change. This I call the constitutional doctrine of manifest necessity. [Meter, An analysis of the unified trial court, 20 Quinnipiac L R 697, 706 (2001).]

Today our Court reaffirms these principles. Constitutional modification requires strict adherence to the methods and approaches included in the constitution itself. Shortcuts and end runs to revise the constitution, which ignore the pathways specifically set forth by the framers, cannot be tolerated. As Justice Markman said in his concurrence in Michigan United Conservation Clubs v. Secretary of State (After Remand), 464 Mich. 359, 393, 630 N.W.2d 297 (2001) (MUCC III), "the `overarching right of the people' is to have the constitution that they have ratified given respect and accorded its proper meaning."

We offer no opinion on the merits of any or all of the substantive matters contained in the RMGN initiative petition. Also, let us be clear at the outset what our opinion today does not do. We do not act to prevent the citizens from voting on a proposal simply because that proposal is allegedly too complex or confusing. Nor do we seek to substitute our own preferences regarding governmental form, structure, or functioning for those of the electorate. We do not, for example, determine whether reducing the salaries of legislators and certain executive branch officers is a good idea or a bad one. Nor do we decide whether establishing new financial disclosure requirements for elected officials and candidates for public office should be done in the constitution, by statute, or not at all. We do not agree or disagree with the redistricting criteria or process contained in the RMGN proposal. And we most certainly do not address the question whether there should be a reduction in judicial salaries and in the number of appellate court judgeships on the ground that these judgeships are "unnecessary." The broad range of public policy issues, and those items that involve politics and elections, are not the province of the judicial branch of government.

RMGN contends that plaintiffs' arguments amount to a "judicial veto," preventing a vote on this massive initiative petition. RMGN misstates the legal issue and ignores specific constitutional requirements, and its argument reflects an appeal to the court of public opinion, not a court of law. Our decision interprets and applies provisions of the constitution of the state of Michigan, nothing less and nothing more.

As we will explain, the Michigan Constitution clearly establishes separate methods for enacting an "amendment" to, as compared to a "general revision" of, the constitution. It is absolutely clear that the procedure for amending the constitution cannot effectuate such a "general revision." Here, RMGN submitted its proposal under the initiative petition procedure that Const 1963, art 12, § 2, established for amending the constitution. However, we conclude that the proposal is a "general revision" of the constitution. Only the constitutional convention procedure established by Const 1963, art 12, § 3, can accomplish such a general revision. Therefore, the constitutional power of initiative does not extend to this proposal. Accordingly, the RMGN initiative petition does not meet the constitutional prerequisites for acceptance and the Board and the Secretary have a clear legal duty to reject the petition. Concurrently with the release of this opinion, we have issued an order directing the Secretary and the Board to stop the canvass, to reject the RMGN initiative petition, and to not allow the proposal to be placed on the ballot.

II. FACTS AND PROCEDURAL HISTORY

A. THE PARTIES

(1) PLAINTIFFS

Citizens Protecting Michigan's Constitution is a "ballot question committee" organized for the purpose of challenging the RMGN petition. Lowell R. Ulrich is the chief judge of the Chippewa County Probate Court. Michael Bishop and Alan Cropsey are members of the Michigan State Senate. Virgil Smith, Jr., is a member of the Michigan State House of Representatives. Mike Bryanton is the Ingham County Clerk.

(2) DEFENDANTS

The Secretary holds office under the constitution. See Const 1963, art 5, § 3. The Secretary is the single executive, see id., heading the Department of State. The Department of State is one of the principal departments in the executive branch of state government. See MCL 16.104(1). The Secretary is the chief election officer of the state and has supervisory authority over local election officials in the performance of their duties. MCL 168.21.

The Board is established by the constitution and by statute. Const 1963, art 2, § 7; MCL 168.22. It is the Board that canvasses an initiative petition to ascertain if the requisite number of qualified and registered electors has signed the petition and that makes a final determination regarding the sufficiency of a petition. See MCL 168.476.

(3) INTERVENING DEFENDANT

We granted RMGN permission to intervene in this matter. RMGN is a "ballot question committee" that was organized for the purpose of drafting, circulating, collecting signatures for, and submitting for approval the initiative petition that is being challenged here.

(4) AMICUS CURIAE

We granted the Attorney General permission to file a brief as amicus curiae. Although the Attorney General's office represents the Board and the Secretary, the Attorney General asserts that he has an independent obligation as a state officer to protect and defend the constitution.

B. THE RMGN INITIATIVE PETITION

The RMGN initiative petition seeks to alter four articles of the Michigan Constitution of 1963: article II (elections), article IV (legislative branch), article V (executive branch), and article VI (judicial branch). More specifically, as the Attorney General points out, the proposal would, among other things:

(1) allow voting by absentee ballot without giving a reason;

(2) establish in the executive branch a new office of elections;

(3) modify the referendum procedure;

(4) modify the initiative procedure;

(5) reduce the number of legislators in the state Senate from 38 to 28;

(6) reduce the number of legislators in the state House of Representatives from 110 to 82;

(7) create a new commission with sole and exclusive authority over legislative districting;

(8) establish specific rules for creating legislative districting plans;

(9) eliminate the current provision allowing for judicial review of districting plans;

(10) limit lobbying activities of members of the Legislature who leave office;

(11) reduce the base salaries of legislators, the Governor, the Lieutenant Governor, the Attorney General, and the Secretary;

(12) authorize the Legislature to grant any citizen standing to bring certain environmental lawsuits;

(13) alter the pension and retirement benefits of legislators, certain executive officers, and judges elected after January 1, 2009;

(14) provide for public inspection of financial records of the Legislature;

(15) reduce the maximum number of principal departments in the executive branch;

(16) limit the lobbying activities of heads of principal departments in the executive branch after leaving office;

(17) establish a maximum number of state boards and commissions;

(18) require a separate vote to elect the Governor and the Lieutenant Governor, rather than a single joint vote for the Governor and the Lieutenant Governor candidates nominated by the same party;

(19) eliminate the Governor's authority to fill vacancies in the office of the Secretary and the Attorney General;

(20) require financial disclosures by certain elected officials (including judges and legislators) and...