Ferency v. Secretary of State

• Decision Date: 12 September 1980
• Docket Number: 65765,Docket Nos. 65764,2,65882,Nos. 1,s. 1
• Citation: 297 N.W.2d 544,409 Mich. 569
• Parties: Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director, Elections Division, Department of State and Board of State Canvassers, Defendants-Appellants. Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director of Elections Division, Department of State, and Board of State Canvassers, Defendants-Appellees, and Tisch Coalition for Property Tax Cut in Michigan, Inc., Intervening Defendant-Appellant. Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director of Elections Division, Department of State, and Board of State Canvassers, Defendants-Appellants, and Tisch Coalition for Property Tax Cut in Michigan, Inc., Intervening Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 544

297 N.W.2d 544

409 Mich. 569

Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director, Elections Division, Department

of State and Board of State Canvassers,

Defendants-Appellants.

Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director of Elections Division,

Department of State, and Board of State

Canvassers, Defendants-Appellees,

and

Tisch Coalition for Property Tax Cut in Michigan, Inc.,

Intervening Defendant-Appellant.

Zolton FERENCY, Plaintiff-Appellee, v. SECRETARY OF STATE, Director of Elections Division,

Department of State, and Board of State

Canvassers, Defendants-Appellants,

and

Tisch Coalition for Property Tax Cut in Michigan, Inc.,

Intervening Defendant-Appellee.

Docket Nos. 65764, 65765, 65882.

Calendar Nos. 1, 2.

Supreme Court of Michigan.

Argued Sept. 12, 1980 (Calendar No. 1). Submitted on Briefs

Sept. 30, 1980 (Calendar No. 2). Calendar No. 1

Decided Sept. 12, 1980. Calendar No. 2

Decided, and opinions in both,

Oct. 3, 1980.

Foster, Swift, Collins & Coey, P. C. by Michael J. Schmedlen and Thomas A. Baird, Lansing, and Zolton Ferency, in pro. per., School of Crim. Justice, East Lansing, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Jann Ryan Baugh and Robert C. Ward, Jr., Asst. Attys. Gen., Lansing, for defendants-appellants.

Reid, Reid & Mackay, P. C. by Joseph D. Reid and Patrick R. Hogan, Lansing, for intervening defendant.

NOS. 65764, 65765

PER CURIAM.

On September 4, 1980, the Ingham Circuit Court issued an order which, inter alia, stated:

" * * * (T)his court declares the 'Tisch' proposal, and any and all such petitions filed with Defendant, Secretary of State, are legally insufficient and that the said proposal is not entitled to placement on the ballot scheduled for the November, 1980 General Election."

The order further provided that the defendant Secretary of State, the defendant Director of Elections, and the defendant Board of State Canvassers were to take " * * * no steps whatsoever to effectuate placement of such proposal on said ballot." Finally, the order provided that the defendant Board of State Canvassers was " * * * enjoined and restrained from certifying for placement on the ballot the so-called 'Tisch' amendment."

The basis for the circuit court's ruling was its finding that the petitions which were circulated to gather signatures in support of the proposed constitutional amendment did not comply with the requirement of M.C.L. § 168.482; M.S.A. § 6.1482 ¹ in that all existing provisions of the Constitution which the proposal would alter or abrogate were not set forth therein. Specifically, the circuit court found that the petitions did not include reference to Const. 1963, art. 2, § 9 ²; art. 4, § 1 ³; art. 4, § 33 ⁴; art. 4 Defendants Secretary of State, Director of the Elections Division of the Department of State and the Board of State Canvassers, as well as intervening defendant Tisch Coalition for Property Tax Cut in Michigan, Inc., filed claims of appeal, together with requests for ancillary relief, in the Court of Appeals. That same day, September 8, 1980, the defendants and intervening defendant sought leave to appeal to this Court prior to the decision of the Court of Appeals. By order dated September 10, 1980, we granted leave to appeal.

[409 Mich. 589] § 34 ⁵; and art. 4, § 40 ⁶. The circuit court found that each of the aforementioned constitutional provisions would be "altered or abrogated" if the proposed constitutional amendment were adopted.

I

As early as 1918, it had been recognized by this Court that:

"Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally Const. 1963, art. 12 § 2 provides for the exercise of the right of popular amendment and describes the conditions imposed on that right. ⁸ This section is self-executing-it does not depend upon statutory implementation. ⁹ And, as this Court has recently reaffirmed:

that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is [409 Mich. 590] 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." ⁷

" 'It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St. Clair County Election Commission, 334 Mich. 258, 54 N.W.2d 425 (1952); Hamilton v. Secretary of State, 227 Mich. 111, 125, 198 N.W. 843, 848 (1924):

" ' " 'The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.' " ' " ¹⁰

The rationale for making the right of popular amendment by initiative self-executing, and for judicial care in insuring that the legislature does not unduly burden the exercise of the right, was expressed in the lead opinion in Hamilton v. Secretary of State ¹¹:

"The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that:

" 'A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.' Morley v. Thayer, 3 F. 737; People v. Rumsey, 64 Ill. 44; Brin v. Williamson, 7 How. (Miss) 14."

The constitution does not require that the petition set out existing provisions that will be altered or abrogated. The constitution places the burden of publishing this information on the state, as a means of informing the voters. ¹² The legislature, apparently feeling it proper to extend the educational function of this requirement to persons signing petitions, has placed the burden on petitioners, allegedly pursuant to the constitutional provision that "(a)ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law." ¹³

Assuming arguendo that a new requirement regarding substantive content is a regulation of form, and assuming that the legislature can impose minimal burdens to keep the process fair, open and informed, ¹⁴ the burden imposed cannot unduly restrict the exercise of the right.

In construing the burden placed on petitioners by § 482, we are mindful that

"under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed." ¹⁵

Further, where, as here, there is doubt as to the meaning of legislation regulating the reserved right of initiative, that doubt is to be resolved in favor of the people's exercise of the right. ¹⁶

II

Historically, our interpretation of the words "alter or abrogate" has occurred in the context of the constitutional publishing requirement.

In School District of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 N.W. 474, 478 (1933), this Court was faced with a challenge to an amendment to the Constitution of 1908. The amendment was proposed by the requisite number of qualified electors, was submitted at the November, 1932 election, and received the necessary votes for its adoption. Const. 1908, art. 17, § 3 provided:

"All proposed amendments to the constitution submitted to the electors shall be published in full, with any existing provisions of the constitution which would be altered or abrogated thereby, and a copy thereof shall be posted at each registration and election place. Proposed amendments shall also be printed together with any other special questions to be submitted at such election in full on a single ballot separate from the ballot containing the names of candidates or nominees for public office."

It was argued before this Court that the amendment which was approved by the electors altered or abrogated many other provisions of the Constitution and that the failure to publish those existing provisions nullified the attempted amendment.

In sustaining the validity of the amendment, this Court held:

"In determining what constitutes compliance with the constitutional requirement as to publication, a matter of prime importance is the purpose that prompted the people of the State of Michigan to include such a provision in the Constitution. All will agree that this was a means adopted by which it was believed the elector would be definitely advised as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted. Being so advised, the elector could intelligently determine whether his vote would be for adoption or rejection. But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a...