Citizens Protecting Michigan's Constitution v. Sec'y of State

• Decision Date: 31 July 2018
• Docket Number: No. 157925,157925
• Citation: 921 N.W.2d 247,503 Mich. 42
• Parties: CITIZENS PROTECTING MICHIGAN'S CONSTITUTION, Joseph Spyke, and Jeanne Daunt, Plaintiffs-Appellants, v. SECRETARY OF STATE and Board Of State Canvassers, Defendants/Cross-Defendants-Appellees, and Voters Not Politicians Ballot Committee, d/b/a Voters Not Politicians; Count Mi Vote, d/b/a Voters Not Politicians; Kathryn A. Fahey; William R. Bobier; and Davia C. Downey, Intervening Defendants/Cross-Plaintiffs-Appellees.
• Court: Michigan Supreme Court

503 Mich. 42

921 N.W.2d 247

CITIZENS PROTECTING MICHIGAN'S CONSTITUTION, Joseph Spyke, and Jeanne Daunt, Plaintiffs-Appellants,

v. SECRETARY OF STATE and Board Of State Canvassers, Defendants/Cross-Defendants-Appellees,andVoters Not Politicians Ballot Committee, d/b/a Voters Not Politicians; Count Mi Vote, d/b/a Voters Not Politicians; Kathryn A. Fahey; William R. Bobier; and Davia C. Downey, Intervening Defendants/Cross-Plaintiffs-Appellees.

No. 157925

Supreme Court of Michigan.

Decided July 31, 2018

Argued July 18, 2018

Viviano, J.

The question in this case is whether the voter-initiated amendment proposed by intervening defendant Voters Not Politicians (VNP) should be placed on the ballot. VNP launched a petition drive to propose an amendment that would reestablish a commission to oversee legislative redistricting. Plaintiffs brought suit to stop the petition from being placed on the ballot, making the now familiar argument that the proposed amendment is actually a "general revision" that can only be enacted through a constitutional convention.

We took this case to determine whether the VNP petition is a constitutionally permissible voter-initiated amendment under Const 1963, art 12, § 2. To answer this question, we must fulfill our Court's most solemn responsibility: to interpret and apply the pertinent provisions of our Constitution. After closely examining the text, structure, and history of the Constitution, we hold that, to be permissible, a voter-initiated amendment must propose changes that do not significantly alter or abolish the form or structure of the government in a manner equivalent to creating a new constitution. We reach this conclusion for the following reasons:

• The text of the relevant constitutional provisions, Const 1963, art 12, §§ 2 and 3, makes it clear that a constitutional convention is required to produce a new constitution. (See pages 20 through 31 of this opinion.)

• The primary substantive limitation in the text of the predecessor provision to Const 1963, art 12, § 2 originally imposed on voter-initiated amendments was removed more than 100 years ago. (See pages 20 through 22 of this opinion.)

• Our caselaw on this topic—undeveloped and largely not on point—fails to establish any controlling standard in this area. (See pages 12 through 19 of this opinion.)

In this case, VNP's amendment does not propose changes creating the equivalent of a new constitution:

• VNP's proposed redistricting commission is materially similar to the commission provided for in our current Constitution, and VNP's proposed redistricting standards are similar to the ones presently used. (See pages 38 through 44 of this opinion.)

• VNP's proposal does not substantially change the powers of the three branches of government when compared to where the people placed those powers in the 1963 Constitution. (See pages 44 through 50 of this opinion.)

• Finally, treating VNP's proposal as an amendment accords with the stated expectations of key delegates to the 1961-1962 constitutional convention, statements from this Court on this very topic, and the treatment of this issue by other states. (See pages 50 through 55 of this opinion.)

Therefore, we affirm the judgment of the Court of Appeals that VNP's proposal is a permissible voter-initiated amendment.

I. FACTS AND PROCEDURAL HISTORY

VNP is a ballot-question committee. It filed with defendant Secretary of State the initiative petition at issue in this case. The initiative proposal would, among other things, amend Const 1963, art 4, § 6, which established a commission to regulate legislative redistricting. The commission prescribed by our present Constitution is inactive because this Court declared that it could not be severed from apportionment standards contained in the Michigan Constitution that had been held to be unconstitutional, as explained further below.¹ After that ruling, this Court oversaw redistricting until the Legislature took control of the process. VNP's proposal would bring Michigan's constitutional redistricting standards in line with federal constitutional requirements and revive the redistricting commission's authority to set redistricting plans for the state house, state senate, and federal congressional districts.

A sufficient number of registered electors signed the petition for it to be placed on the November 2018 general election ballot. Before the Board of State Canvassers could certify the petition for placement on the ballot,² plaintiff Citizens Protecting Michigan's Constitution (CPMC), along with other plaintiffs,³ filed the present complaint for a writ of mandamus directing the Secretary of State and the Board to reject the VNP proposal. CPMC argued that the proposal was not an amendment of the Constitution that could be proposed by petition under Const 1963, art 12, § 2 ; rather, the proposal amounted to a "general revision" of the Constitution and could be enacted only through a constitutional convention under Const 1963, art 12, § 3. The Court of Appeals granted the request by VNP and other parties⁴ to intervene as defendants and to file a cross-complaint seeking a writ of mandamus requiring the proposal to be placed on the ballot.

In a unanimous published opinion, the Court of Appeals rejected plaintiffs' requested relief and granted the relief sought by intervening defendants, ordering the Secretary of State and the Board "to take all necessary measures to place the proposal on the November 2018 general election ballot."⁵ The Court noted that our courts have long distinguished between an "amendment" and a "revision."⁶ The former was a narrower concept focusing on specific changes to the Constitution, while the latter was a more comprehensive modification of fundamental government operations.⁷ To determine if a particular proposal changed the fundamental nature of the government, the Court of Appeals considered the quantitative and qualitative features of the proposal.⁸

Comparing the present proposal to those addressed in past cases, the Court observed that the proposal would continue, with modifications, the redistricting commission already in the Constitution (although not enforced).⁹ Also, the proposal "involve[d] a single, narrow focus—the independent citizen redistricting commission."¹⁰ While the proposal reduced this Court's oversight of redistricting plans from the level contemplated by the present Constitution, our Court would nonetheless retain control over challenges to redistricting plans.¹¹ Regarding quantitative considerations, the Court of Appeals noted the number of words the proposal would add to the Constitution (4,834) and the fact that 11 sections would be changed across 3 articles of the Constitution.¹² None of this, however, was enough to convince the Court that fundamental government operations would be altered. Thus, the proposal was an amendment that could be brought by petition, as it had been.

CPMC sought leave to appeal here and requested a stay of proceedings below so that the Board would not certify the proposal while the case remained pending. We denied the motion for a stay,¹³ but we granted leave to appeal to consider "whether the proposal at issue is eligible for placement on the November 2018 general election ballot as a voter-initiated constitutional amendment under Const 1963, art 12, § 2, or whether it is a revision to the Constitution and therefore is ineligible for placement on the ballot."¹⁴

II. STANDARD OF REVIEW

A lower court's decision on whether to grant a writ of mandamus is reviewed for an abuse of discretion.¹⁵ To the extent that a request for a writ of mandamus involves questions of law, we review them de novo.¹⁶

III. ANALYSIS

A. CONSTITUTIONAL INTERPRETATION

Our Constitution is clear that "[a]ll political power is inherent in the people."¹⁷ The people have chosen to retain for themselves, in Const 1963, art 12, § 2, the power to initiate proposed constitutional amendments that, if various requirements are met, will be placed on the ballot and voted on at election time. It has been observed that "there is no more constitutionally significant event than when the wielders of ‘[a]ll political power’ under that document, Const 1963, art 1, § 1, choose to exercise their extraordinary authority to directly approve or disapprove of an amendment thereto. Const 1963, art 12, §§ 1 and 2."¹⁸ In this case, we must determine the scope of the voters' power to initiate amendments.

In answering this question, we do not consider whether the proposed amendment at issue represents good or bad public policy.¹⁹ Instead, we must determine whether the amendment meets all the relevant constitutional requirements.²⁰ There may be an "overarching right" to the initiative petition, "but only in accordance with the standards of the constitution; otherwise, there is an ‘overarching right’ to have public policy determined by a majority of the people's democratically elected representatives."²¹ In particular, we have stated that the "right [of electors to propose amendments] is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution."²²

Our inquiry here, then, is to determine the extent of the people's right to initiate constitutional amendments and whether any clear limitations may be found in the Constitution.²³ As with any constitutional provision, the objective of our interpretation " ‘is to determine the text's original meaning to the ratifiers, the people, at the time of ratification.’ "²⁴ The primary rule is that of " ‘common understanding,’ " as Justice COOLEY explained long ago:

A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. "For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be

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