Pletz v. Secretary of State
Decision Date | 21 September 1983 |
Docket Number | Docket No. 60613 |
Citation | 336 N.W.2d 789,125 Mich. App. 335 |
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 |
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.
This case involves an attack on the constitutionality of the 1978 lobbying statute.Specifically, on April 30, 1981, plaintiffsFrances Pletz, et al., filed a complaint against defendants, 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 1975the 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 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.
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 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:
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