Proposal C., In re

• Decision Date: 31 March 1971
• Docket Number: No. 19,19
• Citation: 384 Mich. 390,185 N.W.2d 9
• Parties: In the Matter of Executive Message of Governor re Certification of Questions Pertaining to PROPOSAL C. The School District of Traverse City, a municipal corporation, Plaintiff, v. Frank J. Kelley, Attorney General, the State Board of Education, and John W. Porter, Acting Superintendent of Public Instruction, Defendants, and St. Francis School, Sylvan Christian School and Yeshivath Beth Yehuda School, Holy Childhood of Jesus Boarding and Day School, et al., Intervenor-Defendants and Cross-Plaintiffs, and Richard Henry Crampton et al., Intervenor-Plaintiffs. January Term 1971.
• Court: Michigan Supreme Court

Page 9

185 N.W.2d 9

384 Mich. 390

In the Matter of Executive Message of Governor re

Certification of Questions Pertaining to PROPOSAL

C. The School District of Traverse City, a municipal corporation, Plaintiff, v. Frank J. Kelley, Attorney General, the State Board of

Education, and John W. Porter, Acting

Superintendent of Public Instruction, Defendants,

and

St. Francis School, Sylvan Christian School and Yeshivath

Beth Yehuda School, Holy Childhood of Jesus

Boarding and Day School, et al.,

Intervenor-Defendants and

Cross-Plaintiffs,

and

Richard Henry Crampton et al., Intervenor-Plaintiffs.

No. 19 January Term 1971.

Supreme Court of Michigan.

March 31, 1971.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Solomon Bienenfeld

Eugene Krasicky, Russell Searl, and Maxine B. Virtue, Asst. Attys. Gen., Lansing, for defendants

Levin, Levin, Garvett & Dill, Detroit, for intervening plaintiffs.

Hubbell, Blakeslee & McCormick, Stuart D. Hubbell, Traverse City, William R. Consedine, George E. Reed, Vincent C. Allred, Alfred L. Scanlan, Washington, D.C., for intervenors-defendants; Shea & Gardner, Washington, D.C., Charles M. Whelan, New York City, of counsel.

MacLean, Seaman, Laing & Guilford, Lansing, for amici curiae Michigan Association of School Administrators, Michigan Association of School Boards and Oakland Schools.

Fred C. Newman, Newman & Mackay, Lansing, for Board of Education of Lansing School District, amicus curiae.

Before the Entire Bench.

WILLIAMS, Justice.

This case arises from a declaratory judgment suit, brought by the Traverse City School District in the 13th Circuit Court against the Attorney General, and joined by all the appropriate parties in interest, to test the validity of the Attorney General's opinion, (OAG 4715) issued on November 3, 1970, which construes Proposal C, the constitutional initiative amendment prepared by the Council Against Parochiaid, as forbidding public monies for shared time and auxiliary services and expanded by counterclaims and cross-claims to include questions of Proposal C's impact upon private foster homes, Title I programs under the Federal Elementary and Secondary Education Act of 1965 and tax exemptions for nonpublic schools and the federal constitutionality of Proposal C. The case properly came before this Court pursuant to General Court Rule 797 on the request by the Governor to consider seven specific questions of public importance relating to the construction of Proposal C. This Court ordered the Grand Traverse Circuit Court to certify these seven questions, and in its discretion added an eighth related question which will not be considered here, as it became the subject matter of a companion case. Carman v. Secretary of State, Mich., 185 N.W.2d 1 (1971).

In Carman v. Secretary of State, Supra, this Court held that the result of the November 1970 referendum on Proposal C was to add the language of Proposal C as a second paragraph of Article 8 Sec. 2 of the Michigan Constitution. This instant case therefore raises the question of the construction of Article 8 Sec. 2 as amended. Article 8 Sec. 2 originally read as follows:

'Sec. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.'

Proposal C added the following paragraph:

'No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature, or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.'

I. RULES OF CONSTRUCTION

This case requires the construction of a constitution, where the technical rules of statutory construction do not apply. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407, 4 L.Ed. 579 (1819).

The primary rule is the rule of 'common understanding' described by Justice Cooley:

'A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, The intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, But rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' (Cooley's Const. Lim. 81).' (Emphasis added.)

(See also quotation on 'common understanding' in the Per curiam opinion of the companion Carman case, Supra.)

A second rule is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered. On this point this Court said the following:

'In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished.' Kearney v. Board of State Auditors, 189 Mich. 666, 673, 155 N.W. 510, 512.

A third rule is that wherever possible an interpretation that does not create constitutional invalidity is preferred to one that does. Chief Justice Marshall pursued this thought fully in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, which we quote in part:

'If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, * * *'

II.

THE EFFECT OF AMENDED ARTICLE 8, SECTION 2, CONSTITUTION OF

1963 ON CHAPTER 2, ACT 100 OF 1970

In Advisory Opinion re Constitutionality of P.A.1970, No. 100, 384 Mich. 82, 180 N.W.2d 265 (1970), we held that the Constitution of Michigan did not prohibit the purchase with public funds of secular educational services from a nonpublic school. ¹

Article 8, Sec. 2, as amended by Proposal C, now prohibits the use of public funds 'directly or indirectly to aid Accordingly, we hold Chapter 2, Act 100, P.A. 1970, unconstitutional as of December 19, 1970, the effective date of the amendment, and any credits accumulated on or after that date are invalid.

or maintain' a nonpublic school. The language of this amendment, read in the light of the circumstances leading up to and surrounding its adoption, ² and the common understanding [384 Mich. 407] of the words used, prohibits the purchase, with public funds, of educational services from a nonpublic school.

Payments to eligible units made or credits accumulated from September 1, 1970, to and including December 18, 1970, were and are valid and constitutional, whether already disbursed or hereafter paid out. Advisory Opinion re Constitutionality of P.A.1970, No. 100, 384 Mich. 82, 180 N.W.2d 265.

III.

EFFECT OF AMENDED ARTICLE 8, SECTION 2, CONSTITUTION OF

1963, ON SHARED TIME

Certified question No. 1 is as follows:

Does Proposal C preclude the provision, through shared time or dual enrollment programs, of elementary or secondary instruction or educational services to nonpublic school students at any nonpublic school or at any other location or institution where instruction is offered in whole or in part to such nonpublic school students?

Answer: At the public school, no; on leased premises, not necessary; on nonpublic school premises, not necessarily.

The first paragraph of Article 8 Sec. 2 requires a non-discriminatory system of education. The second paragraph or the Proposal C part of Article 8 Sec. 2 contains five prohibitions against the appropriation directly or indirectly of public monies or its equivalent. The five prohibitions are:

1. No public money 'to aid or maintain' a nonpublic school;

2. No public money 'to support the attendance of any student' at a nonpublic school;

3. No public money to employ any one at a nonpublic school;

4. No public money to support the attendance of any student at any location where instruction is offered to a nonpublic school student.

5. No public money to support the employment of any person at any location where instruction is offered to a nonpublic school student.

This Court must construe whether shared time services ³ to nonpublic school students

are prohibited [384 Mich. 412] by any of the five prohibitions mentioned above. This question will be considered under three headings:

1. Shared time--at the public school.

Attorney General's Opinion 4715 construes Proposal C to prohibit shared time services at the public school as follows:

'Under the amendment, public funds could not be used to support the attendance of nonpublic school students at 'any location or institution where instruction is offered in whole or In part to nonpublic school students.' (Emphasis supplied.)'

This is a shocking result. It violates both the free exercise of religion and the equal protection provisions of the United States Constitution. (See Part VIII)

These reasons evoke the necessity of applying the rules of construction (Part I). As a consequence, the question before this Court is whether there is an alternative constitutional construction to that adopted in the aforesaid Attorney General's Opinion, which also preserves the purpose of Proposal C of proscribing parochiaid...