Frey v. Department of Management and Budget, Docket Nos. 81502

• Court: Supreme Court of Michigan
• Writing for the Court: ARCHER; The case was assigned to Judge James T. Kallman, and in his absence, Judge James R. Giddings entered a temporary restraining order, restraining the application of the initiated law. On the hearing date; GRIFFIN; CAVANAGH
• Citation: 429 Mich. 315,414 N.W.2d 873
• Decision Date: 04 November 1987
• Docket Number: 81517,Docket Nos. 81502,No. 13
• Parties: Judith FREY, Reverend Roger G. Stutesman, Jack M. Stack, M.D., Bobbie Jean Fueri, Peter Kakela, Elizabeth A. Wall, and the Committee for the Protection of Michigan Lives, Plaintiffs-Appellees, v. DEPARTMENT of MANAGEMENT and BUDGET, Robert Naftaly, Director, Patrick Babcock, Director of the Michigan Department of Social Services, and Robert Bowman, Michigan State Treasurer, Defendants-Appellants, and Barbara Listing, Jane Muldoon, Joseph Iskra, Bertha Wilson, Don Stoneburner, Representative Michael Griffin, Representative William Van Regenmorter, Senator Fred Dillingham, Senator James Barcia, and the Committee to end Tax-Funded Abortions, Intervening Defendants-Appellants. Calendar

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414 N.W.2d 873 429 Mich. 315 Judith FREY, Reverend Roger G. Stutesman, Jack M. Stack,
M.D., Bobbie Jean Fueri, Peter Kakela, Elizabeth
A. Wall, and the Committee for the
Protection of Michigan Lives,
Plaintiffs-Appellees,
v.
DEPARTMENT of MANAGEMENT and BUDGET, Robert Naftaly,
Director, Patrick Babcock, Director of the Michigan
Department of Social Services, and Robert Bowman, Michigan
State Treasurer, Defendants-Appellants,
and
Barbara Listing, Jane Muldoon, Joseph Iskra, Bertha Wilson,
Don Stoneburner, Representative Michael Griffin,
Representative William Van Regenmorter, Senator Fred
Dillingham, Senator James Barcia, and the Committee to end
Tax-Funded Abortions, Intervening Defendants-Appellants. Docket Nos. 81502, 81517.
Calendar No. 13. Supreme Court of Michigan. Argued Oct. 9, 1987.
Decided Nov. 4, 1987.

[429 Mich. 317] John D. Pirich, P.C., Timothy Sawyer Knowlton, Kevin J. Moody, Noah Eliezer Yanich, Miller, Canfield, Paddock & Stone, Lansing, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Counsel of Record, Gary P. Gordon, Richard P. Gartner, Asst. Attys. Gen., Lansing, for defendants-appellants.

Richard D. McLellan, William J. Perrone, Cindy M. Wilder, Dykema, Gossett Spencer, Goodnow & Trigg, Lansing, for intervening defendants-appellants.

Edward M. Wise, Detroit, for amici curiae American Civil Liberties Union Fund of Mich., Jewish Community Council of Metropolitan Detroit, Michigan Nat. Organization for Women, Planned Parenthood Affiliates of Mich., Women Lawyers Assn. of Mich.

[429 Mich. 318] ARCHER, Justice.

In this case of first impression, we granted leave to determine whether Const.1963, art. 4, Sec. 27, applies to initiated laws enacted by the Legislature. ¹ If art. 4, Sec. 27 applies to initiated laws enacted by the

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Legislature, then those laws must receive a two-thirds vote of each house to take immediate effect. If art. 4, Sec. 27, does not apply, then those laws may be given immediate effect without being passed by a two-thirds vote of each house.

We hold that art. 4, Sec. 27, does apply to initiated laws enacted by the Legislature. Therefore, since the initiative was not given immediate effect by a two-thirds vote of each house of the Legislature, 1987 P.A. 59 may not go into effect until ninety days after the end of the session at which it was enacted. We affirm the decision of the Court of Appeals.

FACTS

On April 30, 1987, the Committee to End Tax-Funded Abortions, a registered ballot question committee, filed an initiative petition with the Secretary of State, seeking to amend the Social Welfare Act, MCL 400.la et seq.; M.S.A. 16.401(1) et seq., by adding Sec. 109a. The proposed amendment stated:

"The People of the State of Michigan enact: Section 109a. Notwithstanding any other provision of this act, an abortion shall not be a service provided with public funds to a recipient of welfare benefits, whether through a program of medical assistance, general assistance, or categorical assistance or through any other type of public aid or assistance program, unless the abortion is necessary[429 Mich. 319] to save the life of the mother. It is the policy of this state to prohibit the appropriation of public funds for the purpose of providing an abortion to a person who receives welfare benefits unless the abortion is necessary to save the life of the mother."

In the center of the page several lines down were the words:

"This act shall take immediate effect."

On June 12, 1987, the Board of State Canvassers certified the sufficiency of the petition, declaring that there were sufficient valid signatures for the proposed law to be submitted to the Legislature. On June 17, the Senate voted to enact the amendment by a 30 to 6 vote. Senator Lana Pollack requested a vote on immediate effect, but the Senate denied the request because a memorandum by the Senate Committee on Government Operations had concluded that the amendment was immediately effective. Consequently, the Senate did not take a vote on immediate effect.

On June 23, 1987, the House of Representatives approved the petition by a vote of 66 to 41. Representative Charlie J. Harrison, Jr., requested a vote on immediate effect. His request was denied for the same reasons given in the Senate. On that same day, the initiated law was delivered to the Secretary of State and designated 1987 P.A. 59.

On June 23, 1987, after the vote of the House of Representatives, plaintiffs-appellees commenced this action in the Circuit Court for the Thirtieth Judicial District, seeking declaratory relief, a writ of mandamus, and injunctive relief to prevent 1987 P.A. 59 from taking immediate effect. Plaintiffs alleged that under Const.1963, art. 4, Sec. 27, the [429 Mich. 320] amendment could only take immediate effect if the Legislature voted, by a two-thirds vote of each house, to give the act immediate effect. Plaintiffs also requested an order of mandamus, requiring defendants to continue medicaid funding for abortions until the act became effective. ²

The case was assigned to Judge James T. Kallman, and in his absence, Judge James R. Giddings entered a temporary restraining order, restraining the application of the initiated law. On the hearing date, Judge Kallman recused himself, and the matter was reassigned.

Following the hearing on June 30, 1987, Judge Robert Holmes Bell granted summary disposition for defendants and dissolved the temporary restraining order. Judge Bell ruled that art. 2 contained sufficient standards to guide the court in determining what is to occur in an initiative petition process; therefore, there was no need to look at art. 4. Judge Bell also ruled that the words at the bottom of the petition, "This act shall take immediate effect,"

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were controlling because they were part of the original initiative and not procedural.

Plaintiffs filed an appeal as of right in the Court of Appeals on July 1, 1987. Contemporaneously, plaintiffs filed, in this Court, an emergency application for leave to appeal prior to decision of the Court of Appeals, a motion for a temporary restraining order or stay, and a motion for immediate consideration. On July 9, 1987, the Court of Appeals issued an order staying the trial court's order and set forth expedited appeal procedures.

On August 12, 1987, the Court of Appeals reversed the decision of the trial court and held that [429 Mich. 321] art. 4, Sec. 27 applies to laws enacted pursuant to an initiative and that, without the required two-thirds vote of each house, 1987 P.A. 59 may not go into effect until ninety days after the end of the session at which it was enacted. After noting that this was a case of first impression, the Court stated that its conclusion was based on the intent of the 1963 Constitutional Convention delegates, the language of art. 2, Sec. 9, precedent from other states, and common sense reasoning. ³

On August 19 and 20, 1987, defendants and intervening defendants filed applications for leave to appeal in this Court and motions for immediate consideration of those applications. On September 8, 1987, we granted leave to appeal and granted the motions for immediate consideration. On that date, we also denied plaintiffs' July 1, 1987, application for leave to appeal prior to decision by the Court of Appeals and the motion for a temporary restraining order or a stay as moot. ⁴

ANALYSIS I

In this case, the Court is asked to construe two provisions in the Michigan Constitution in the context of the initiative process. The first provision, Const.1963, art. 2, Sec. 9, states, in part:

"The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject [429 Mich. 322] laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.

"Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.

"If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election....

"Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be

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subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature."

[429 Mich. 323] The second provision is Const.1963, art. 4, Sec. 27, which states:

"No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate...