Frey v. Director of Dept. of Social Services
| Decision Date | 15 October 1987 |
| Docket Number | No. 101639,101639 |
| Citation | 162 Mich.App. 586,413 N.W.2d 54 |
| 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-Appellants, v. DIRECTOR OF the DEPARTMENT OF SOCIAL SERVICES and Michigan State Treasurer, Defendants-Appellees, and Barbara Listing, Jane Muldoon, Joseph Iskra, Bertha Wilson, Jon Stoneburner, Representative Michael Griffin, Representative William Vanregrenmorter, Senator Fred Dillingham, Senator James Barcia, and the Committee to End Tax-Funded Abortions, Intervening Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Miller, Canfield, Paddock & Stone by John D. Pirich, Michael J. Hodge, Timothy Sawyer Knowlton, Noah Eleizer Yanich and Kevin J. Moody, Lansing, for plaintiffs-appellants.
Dykema, Gossett, Spencer, Goodnow & Trigg by Richard D. McLellan, William J. Perrone, and Cindy M. Wilder, Lansing, for intervening defendants-appellees.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary P. Gordon and Richard P. Gartner, Asst. Attys. Gen., for defendants-appellees.
Before HOOD, P.J., and CYNAR and SHEPHERD, JJ.
Plaintiffs appeal as of right from the June 30, 1987, order of Ingham Circuit Court Judge Robert Holmes Bell granting the motion for summary disposition of defendants and dissolving a temporary restraining order which had restrained the application of initiated law 1987 P.A. 59.
On April 30, 1987, the Committee to End Tax-Funded Abortions, a Michigan ballot question committee, filed petitions with the Secretary of State to initiate legislation to amend the Social Welfare Act, M.C.L. Sec. 400.1 et seq.; M.S.A. Sec. 16.401 et seq. The aim of the proposal was to prevent state-funded abortions for welfare recipients except where the abortion is necessary to save the mother's life. The proposed amendment states:
At the bottom of the petition was the language: "THIS ACT SHALL TAKE IMMEDIATE EFFECT." The initiative was filed in accordance with Const.1963, article 2, Sec. 9, the section permitting initiatives. 1
On June 12, 1987, the Board of State Canvassers certified 395,751 valid signatures on the petitions, more than the 191,000 signatures required for an initiative by article 2, Sec. 9. 2 On June 17, the Senate voted to enact the amendment by a vote of 30 to 6. Senator Lana Pollack requested a vote on immediate effect, but the Senate denied the request on the basis of a memorandum by the Senate Committee on Government Operations which concluded that the amendment was immediately effective because so stated in the petition and because under article 2, Sec. 9 the Legislature was not permitted to change or amend the initiative proposal. Consequently, the Senate took no vote on immediate effect.
On June 23, the House of Representatives approved the petition by a vote of 66 to 41. Representative Charles Harrison, Jr., requested a vote on immediate effect, but the House denied the request for the same reasons the Senate did. The statute was delivered to the Secretary of State and assigned the designation 1987 P.A. 59.
On June 23, plaintiffs commenced this action in Ingham Circuit Court for declaratory and injunctive relief, arguing that 1987 P.A. 59 could not have immediate effect. Plaintiffs alleged that under Const.1963, art. 4, Sec. 27, the amendment could only have immediate effect if the Legislature voted, by a vote of two-thirds of the members 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 such time as the act became effective. 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. Judge Kallman later disqualified himself.
At a hearing on June 30, 1987, Judge Robert Holmes Bell, to whom the case had been reassigned, granted summary disposition in favor of defendants and dissolved the temporary restraining order. Judge Bell ruled that the initiative process under article 2, Sec. 9 was separate from the legislative process of article 4, and, therefore, the initiative was not subject to article 4, Sec. 27. Judge Bell ruled that article 2, Sec. 9 was self-sufficient and did not require a two-thirds vote for immediate effect. He concluded that the immediate effect language contained in the proposal was a part of the initiative and was controlling.
Plaintiffs filed this appeal as of right from that decision on July 9, 1987. This Court granted plaintiffs' motion for a stay and motion for immediate consideration, and we now reverse.
The procedure for initiatives and referendums is set forth in Const.1963, art. 2, Sec. 9, which states in pertinent part:
The question in this case is whether Const.1963, art. 4, Sec. 27 applies to laws enacted by the Legislature pursuant to initiative. Article 4, Sec. 27 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 effect to acts by a two-thirds vote of the members elected to and serving in each house."
If article 4, Sec. 27 applies to laws enacted by the Legislature pursuant to initiative, the amendment in the instant case may not go into immediate effect, the question of immediate effect not having been voted on and passed by a vote of two-thirds of each house. If article 4, Sec. 27 does not apply to laws enacted pursuant to initiative, the amendment must be given immediate effect, as stated in the petition.
This is a case of first impression, and we find little guidance in published precedent. After thorough review, we believe that article 4, Sec. 27 does apply to laws enacted pursuant to initiative and that, without the required vote of two-thirds 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. We come to this conclusion through what we perceive to be the intent of the 1963 constitutional convention delegates, the language of article 2, Sec. 9, precedent from other states, and common-sense reasoning.
Article 4 of the 1963 constitution is entitled "Legislative Branch." It contains sections which deal generally with the legislative branch. Included are sections on the number of senators and representatives and apportionment of districts (Secs. 2, 3), requirements of legislators (Secs. 7, 8), restrictions on legislators (Secs. 9, 10), legislative privilege (Sec. 11), formation of compensation commission (Sec. 12), time of convening (Sec. 13), quorum (Sec. 14), establishment of committees (Sec. 17), journal requirement (Secs. 18, 19), bills (Sec. 22), title-object clause (Sec. 24), printing and reading requirement (Sec. 26), local or special acts (Sec. 29), imposing taxes (Sec. 32), governor's veto power (Sec. 33), publication of laws (Sec. 35), and vacancies in offices (Sec. 38).
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