Pletz v. Secretary of State

• Decision Date: 21 September 1983
• Docket Number: Docket No. 60613
• Parties: Frances PLETZ, Individually and on behalf of all others similarly situated; Michigan Library Association, a Michigan non-profit corporation, Individually, for its members, and on behalf of all others similarly situated; Michigan State Chamber of Commerce, a Michigan non-profit corporation, Individually, for its members, and on behalf of all others similarly situated; the State Bar of Michigan, a Michigan public body corporate, Individually, for its members, and on behalf of all others similarly situated; Michigan Council On Alcohol Problems, a Michigan non-profit corporation, Individually, for its contributors, and on behalf of all others similarly situated; Boysville of Michigan, a Michigan non-profit corporation, Individually, for its contributors, and on behalf of all others similarly situated; Michigan Federation of Private Child and Family Agencies, a Michigan non-profit corporation, Individually, for its members, and on behalf of all others similarly situated; Donald ReANand Jack Watters and Christian Schools of Michigan, et al., Intervening Plaintiffs- Appellees, v. Richard H. Austin, SECRETARY OF STATE of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

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336 N.W.2d 789 125 Mich.App. 335 Frances PLETZ, Individually and on behalf of all others
similarly situated; Michigan Library Association, a
Michigan non-profit corporation, Individually, for its
members, and on behalf of all others similarly situated;
Michigan State Chamber of Commerce, a Michigan non-profit
corporation, Individually, for its members, and on behalf of
all others similarly situated; the State Bar of Michigan, a
Michigan public body corporate, Individually, for its
members, and on behalf of all others similarly situated;
Michigan Council On Alcohol Problems, a Michigan non-profit
corporation, Individually, for its contributors, and on
behalf of all others similarly situated; Boysville of
Michigan, a Michigan non-profit corporation, Individually,
for its contributors, and on behalf of all others similarly
situated; Michigan Federation of Private Child and Family
Agencies, a Michigan non-profit corporation, Individually,
for its members, and on behalf of all others similarly
situated; Donald ReANand
Jack Watters and Christian Schools of Michigan, et al.,
Intervening Plaintiffs- Appellees,
v.
Richard H. Austin, SECRETARY OF STATE of the State of
Michigan; Frank J. Kelley, Attorney General of
the State of Michigan, Defendants-Appellants. Docket No. 60613. Court of Appeals of Michigan. Submitted Oct. 6, 1982.
Decided May 3, 1983.
Released for Publication July 6, 1983.
Leave to Appeal Denied Sept. 21, 1983

Page 792

[125 Mich.App. 339] Honigman, Miller, Schwartz & Cohn by James K. Robinson and Norman C. Ankers, Detroit, McLellan, Schlaybaugh & Whitbeck by Richard D. McLellan, Rex E. Schlaybaugh and William J. Perrone, Miller, Canfield, Paddock & Stone by John D. Pirich and Brian A. Kaser, Lansing, for plaintiffs-appellees.

Stuart D. Hubbell, Traverse City, for intervening plaintiffs-appellees, Jack Watters and others.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Eugene Krasicky and George H. Weller, Asst. Attys. Gen., for defendants-appellants.

Clark, Klein & Beaumont by Dwight H. Vincent, John F. Burns, David H. Paruch, Eileen Drake and Thomas D. Nolan, Detroit, for amicus curiae, Mich. Mfrs. Ass'n, Employees Ass'n of Detroit, Jackson Area Mfrs. Ass'n, and Mfrs. and Employers Ass'n of West Michigan.

Before BEASLEY, P.J., and ALLEN and WHITE, ^* JJ.

BEASLEY, Judge.

This case involves an attack on the constitutionality of the 1978 lobbying statute. Specifically, on April 30, 1981, plaintiffs,

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Frances Pletz, et al., filed a complaint against defendants, [125 Mich.App. 340] Secretary of State and Attorney General of the State of Michigan, seeking a declaratory judgment regarding the constitutionality of 1978 P.A. 472, ¹ a comprehensive act dealing with lobbying (hereinafter referred to as the Act). Accompanying the complaint were 35 affidavits of various persons, some acting in personal capacities and others as representatives of groups. In each instance, the affidavit details the facts and circumstances giving rise to that person's claim that the Act is unconstitutional. On May 15, 1981, defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). After receiving briefs and hearing oral argument, the trial judge filed a written opinion on September 30, 1981, declaring the Act unconstitutional in its entirety. On October 5, 1981, a declaratory judgment, which recited there was no material fact in dispute and which included a permanent injunction, was entered. From this judgment, defendants appeal as of right.

The history is that in 1975 the Legislature enacted a lobby law, which was part of 1975 P.A. 227, to replace the earlier 1947 P.A. 214. This 1975 law did not go into effect because the Political Reform Act, 1975 P.A. 227, of which the lobby law was a part, was held to violate the title-object clause of the Michigan Constitution. ²

In the advisory opinion rendered March 29, 1976, and reported in 396 Mich. 123, 240 N.W.2d 193, the Supreme Court held that statutes found unconstitutional for violation of the title-object clause ³ are not severable and, therefore, the whole act was void. Nevertheless, the Supreme Court responded to the remaining nine certified questions concerning which [125 Mich.App. 341] the House of Representatives had requested an advisory opinion. Those responses are reported in 396 Mich. 465, 242 N.W.2d 3 (1976). In the latter opinion, we note the Supreme Court's following statement:

"An advisory opinion is not precedentially binding upon the Court and represents only the opinions of the parties signatory." 396 Mich. 477, 242 N.W.2d 3.

While, as indicated, the advisory opinion is not binding precedent, we utilize it as a starting point in our analysis and, where appropriate, adhere to it. ⁴

The current legislation, based largely on the 1975 lobbying law, was enacted on October 19, 1978, and was to take effect six months after the promulgation of rules by the Secretary of State. As a result of these rules being filed on December 16, 1980, the Act was to take effect on June 17, 1981.

Plaintiffs are corporations, non-profit corporations, and individuals that engage in activities defined as lobbying under the Act or contribute to organizations which engage in lobbying. In their complaint for a declaratory judgment and permanent injunction, plaintiffs raised myriad challenges to the Act based on the many affidavits.

In its written opinion, the trial court addressed some of the issues raised by plaintiffs and held, among other things, that the Act was unconstitutional on account of (1) vagueness, (2) impermissible interference with the practice of law, (3) overbreadth, (4) denial of equal protection, and (5) infringement upon First Amendment rights of association.

[125 Mich.App. 342] In concluding the Act was unconstitutional, among other things, the trial judge utilized two broad constitutional categories. First, he looked to First Amendment rights and concluded the Act was "overbroad". He reasoned that since fundamental rights of freedom of speech and association (i.e., First Amendment rights) were involved, only a statutory purpose encompassing a compelling articulated state interest would be constitutional. Also, he said that the

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only means of carrying out the compelling state interests would be the least intrusive available.

Second, he looked to the federal and state "due process" clauses which prohibit vagueness in criminal statutes. The constitution requires a criminal statute to be definite so that a person of ordinary intelligence can understand what conduct is forbidden.

Here, we deal with a facial attack on the constitutionality of the Act. No complaint has yet been made by the Secretary of State or Attorney General against any particular individual, agency, or institution for alleged violations of the Act. As indicated, the matter is before us on appeal from the trial court's grant of a declaratory judgment in favor of plaintiffs holding that the Act is unconstitutional in its entirety.

In the 1976 advisory opinion certified question IX, entitled "LOBBY DISCLOSURE: FREE SPEECH," the Court dealt with these constitutional challenges, saying:

"The right of freedom of speech, of association, the right to consult for the common good, to instruct representatives, to petition the government, are all fundamental. As we have indicated elsewhere in this opinion, when the government seeks to regulate a fundamental right, the regulation may be upheld only if justified by [125 Mich.App. 343] a compelling state interest. While requiring lobbyists to disclose information constitutes regulation of fundamental rights, compelling state interest justifies such regulation. Both the electorate and public officials have a right to be informed of those interests represented by lobbyists. The constitutionality of legislation regulating the activities of lobbyists has been upheld by the United States Supreme Court. United States v Harriss, 347 US 612; 74 S Ct 808; 98 L Ed 989 (1954). However, those challenging the constitutionality of Michigan's act argue that when chapter 5 is closely scrutinized it is vague and overbroad.

"Because criminal penalties attach to violations of this statute, fair notice must be provided to a person of ordinary intelligence as to the conduct proscribed. The Michigan statute sufficiently delineates the type of conduct regulated: (1) that a person spend more than $1,000 in a 12-month period; (2) communicating directly with an executive branch or legislative official; or (3) soliciting others to such communication; and that (4) such communication be for the purpose of influencing legislative or administrative action. The statute is more descriptive of the types of communication regulated than the Federal lobbying act discussed in Harriss, supra. Legislative and administrative actions are sufficiently defined in Secs. 12(1) and 2(1), respectively. Thus, we conclude that chapter 5 is sufficiently specific to withstand a vagueness challenge.

"The statute upheld in Harriss differs from the Michigan act in two respects:

"First, the Federal lobbying act as construed by the United States Supreme Court in Harriss covered only the so-called professional lobbyists. Chapter 5 requirements of the Michigan legislation apply not only to those who are paid or pay others, but also those who lobby in their own behalf, provided their expenditures for such activities exceed $1,000. Second, unlike the Federal lobbying act, the requirements of chapter 5 are not restricted to direct communications between the lobbyist or lobbyist agent and the public official. Under Sec. 12(3) lobbying is also defined as 'soliciting others to communicate with an official in the executive branch or [125 Mich.App. 344] an official in the legislative branch for the purpose of influencing legislative or administrative action'.

"In our opinion, the rights of legislators, public officials and the public to know the source...