In re Request for Advisory Opinion Regarding Constitutionality of 2012 PA 348 & 2012 PA 349
| Decision Date | 03 May 2013 |
| Docket Number | SC: 146595 |
| Parties | IN RE REQUEST FOR ADVISORY OPINION REGARDING CONSTITUTIONALITY OF 2012 PA 348 and 2012 PA 349 |
| Court | Michigan Supreme Court |
Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
On order of the Court, the motion for leave to file brief amicus curiae is GRANTED. The request by the Governor for an advisory opinion on the constitutionality of 2012 PA 348 and 2012 PA 349 is considered. We invite the Michigan Solicitor General to file a brief in this case within 35 days from the date of this order expressing the views of the state of Michigan as to whether this Court should grant the Governor's request for an advisory opinion. Specifically, we ask the Solicitor General to address: (1) why prompt resolution of the constitutional question regarding application to the Civil Service Commission is necessary to guide the State Employer in its fall contract negotiations with civil service employees; (2) why this matter warrants this Court's present intervention when § 14(4) of 2012 PA 348 and § 10(6) of 2012 PA 349 explicitly grant "exclusive original jurisdiction over any action challenging the validity of [the pertinent subsections]" in the Court of Appeals, which "shall hear the action in an expedited manner;" (3) given that there are adversarial proceedings already pending in several courts, and in light of the non-precedential nature of an advisory opinion, see Anway v Grand Rapids R Co, 211 Mich 592, 603 (1920); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 460 n 1 (1973), how this Court's intervention in the absence of an actual case and controversy would necessarily aid in resolution of the issues presented rather than produce confusion and delay; and (4) the value of an advisory opinion from this Court addressing federal equal protection issues since federal courts are not bound by state court determinations on federal constitutional issues, see Woods v Holy Cross Hosp, 591 F2d 1164, 1171-1172 (CA 5, 1979).
The request by the Governor for an advisory opinion remains pending.
I do not join the majority's decision to invite the Solicitor General to file a brief in this matter. I believe that this Court is well equipped to decide whether, under the circumstances, it would be an appropriate exercise of discretion to grant the Governor's request for an advisory opinion without inviting comment from the Solicitor General regarding the "views of the state of Michigan." Because the Governor's request remains pending, I do not believe that the majority's order should in any way affect pending adversarial proceedings, including those that are to be heard in an expedited manner.
I would grant without further delay the Governor's request, submitted on January 28, 2013, for an advisory opinion addressing the constitutionality of specific provisions of Public Acts 348 and 349 of 2012 (the "right-to-work" laws) and therefore respectfully dissent. In my judgment, (1) the request for such an advisory opinion constitutes a reasonable exercise of the constitutional authority of the chief executive of this state; (2) the issuance of an advisory opinion would constitute a reasonable exercise of the constitutional authority of this Court; (3) an advisory opinion would affirm this Court's role as the ultimate arbiter of Michigan law; (4) an advisory opinion would, if the right-to-work laws are ultimately determined to be constitutional, facilitate their orderly implementation; (5) an advisory opinion would minimize the possibility of protracted litigation concerning the validity of the right-to-work laws; and (6) an advisory opinion would demonstrate comity by this Court with a coordinate branch of state government.
The Michigan Constitution states:
Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date. [Const 1963, art 3, § 8.]
Considering that this Court possesses this authority, it is difficult to imagine an instance in which its exercise would be more necessary and proper than in the present case. The right-to-work laws, proponents and opponents agree, will have a substantial effect upon both employees and employers, public and private, and upon the economy, throughout this state, and these statutes have been the subject of substantial legal dispute and controversy.
If there is an obvious purpose behind the advisory opinion clause of the Constitution, it is to facilitate the resolution of legal disputes of precisely the sort raised by this case. The Governor has sought to expedite the process by which a bill becomes a law and a law becomes genuine public policy. I would accommodate without further delay his request for an advisory opinion not because this is or should be a compliant court, but because it is and should be a responsible court, ensuring that the constitutional processes of government are respected and that the people's will, as expressed both in the laws enacted by their representatives and in their constitutions, is faithfully upheld. The Governor's request constitutes a rational response to a judicial culture in which the decision-making of courts has been extended into an increasingly broad array of public policy areas. By granting his request, this Court would expedite the process of judicial review, and thereby expedite the process by which some measure of certainty can be brought to laws having a broad and significant economic effect upon this state.
The Governor asserts in his letter seeking an advisory opinion that the state's current collective-bargaining agreements expire on December 31, 2013, that negotiations regarding new contracts will likely begin this summer, and that, in his judgment, it is imperative for the negotiating parties to "know definitively whether the new contracts must comply with Public Act 349 before those negotiations commence . . . ." Though the Governor speaks only to the effects of uncertainty on the public sector, the impact on the private sector will likely be equally significant considering that Michigan is one of the most heavily unionized states in the country. Thus, whatever the ultimate decision of this Court concerning the constitutionality of the right-to-work laws, I would act in response to the Governor's exercise of his constitutional authority, and in the exercise of this Court's own authority, to promote...
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