Request for Advisory Opinion on Constitutionality of 1979 Pa 57, In re

• Decision Date: 30 July 1979
• Docket Number: Docket No. 63476
• Citation: 407 Mich. 60,281 N.W.2d 322
• Parties: In re REQUEST FOR ADVISORY OPINION ON CONSTITUTIONALITY OF 1979 PA 57.
• Court: Michigan Supreme Court

Page 322

281 N.W.2d 322

407 Mich. 60

In re REQUEST FOR ADVISORY OPINION ON CONSTITUTIONALITY OF 1979 PA 57.

Docket No. 63476.

Supreme Court of Michigan.

July 30, 1979.

PER CURIAM.

The Legislature has requested an advisory opinion concerning its construction of a provision of the Headlee Amendment. ¹ The amendment provides in part:

"The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government," ²

and:

"The proportion of total state spending paid to all units of Local Government, taken as a group, shall not be reduced below that proportion in effect in fiscal year 1978-79." ³

1979 P.A. 57 "implements" the latter provision ( § 30) and provides:

"If the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by a local unit of government, the state payments to this function shall be counted as state spending paid to local units of government." ⁴

A Senate concurrent resolution requests this Court to render an advisory opinion

"on the following questions of law:

"1. Is the construction of a situation in which the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by 'local units of government' to be 'state spending paid to local units of government' as stated in section 1a of House Bill No. 4700 (1979 P.A. 57) a proper construction for purposes of section 30 of article 9 of the state constitution of 1963?

"2. Does section 1a of House Bill No. 4700 violate either the 'Equal protection' or 'Due process' provisions of either the Federal or State constitutions as that section applies to 'local units of government'?"

An appropriation bill which has been enacted by the Legislature, but not signed by the Governor, has been called to our attention because it refers to this legislation. It (HB 4277) provides that some of its provisions shall not take effect unless "the supreme court determines in an advisory opinion that the construction" set forth in § 1a of 1979 P.A. 57 "is proper and consistent with section 30" and does not violate the Due Process or Equal Protection Clauses. ⁵

This Court declines to give the advisory opinion requested because:

1) The questions are stated only in general terms; the request fails to particularize the claims of unconstitutionality:

"As suggested by the 'important questions of law' requirement, the request for an advisory opinion must 'particularize any claims of unconstitutionality.' Advisory Opinion re Constitutionality of 1972 PA 294, supra, 389 Mich. 441, 484, 208 N.W.2d 469; Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich. 41, 53, 228 N.W.2d 772 (1975). A request stated too broadly cannot be considered. Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich. 916 (1975)." Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395 Mich. 148, 149, 235 N.W.2d 321, 322 (1975).

2) The questions "are so broad that any advisory opinion of the Court would depend for resolution on whatever particular factual situations the Court would be forced to hypothesize." ⁶

3) When this Court has heretofore agreed to render an advisory opinion it has been able to draw on precedents established in adversary litigation in parallel contexts concerning the constitutional issue presented. An extensive jurisprudence developed in adversary litigation would guide this Court in rendering an advisory opinion on the Equal Protection and Due Process questions. There is no history of adversary litigation or jurisprudence so developed to guide the Court in applying the Headlee limitations on the taxing and appropriation powers. Considering the complexity of the Headlee Amendment we feel it would be rash to attempt to formulate a jurisprudence through advisory opinions.

4) The Headlee Amendment states that "(a)ny taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article." ⁷ This Court should not appear to preempt or preclude such an action by prematurely, in a non-adversary context and in a factual and jurisprudential void, prejudging a potential taxpayer action in a proceeding to which no taxpayer is a party.

This Court, in responding to a prior request for an advisory opinion concerning a legislative construction of the Headlee Amendment, ⁸ declared that "it would be an inappropriate exercise of its discretion" ⁹ to provide an advisory opinion.

5) The Court may be requested to render an advisory opinion only concerning "the constitutionality of legislation" and then only "after it has been enacted into law" but before its effective date. ¹⁰ Section 1a of 1979 P.A. 57 is tied in with § 44 of HB 4277, the effectiveness of which depends on this Court "determining" in an advisory opinion that the construction in § 1a is proper and consistent with and not violative of constitutional limitations. ¹¹ The tie-in with HB 4277 is contrary to the spirit and intendment of the after-enactment limitation on this Court's power to render an advisory opinion. The Constitution provides that the Legislature and the Governor shall participate in the enactment of laws, and does not provide for participation by this Court in that process. A bill which does not become a law unless this Court takes some action has not "been enacted into law" within the meaning of this constitutional provision.

Accordingly, because the potential claims of unconstitutionality are not particularized, because there is a factual and jurisprudential void, because a premature construction of the Headlee Amendment may embarrass the right especially reserved by that amendment to taxpayers to bring actions in the Court of Appeals, and because the request in part affects legislation such as HB 4277, the effectiveness of which depends on this Court agreeing to this request and responding in a manner predetermined by the Legislature, a majority of this Court is unable, being fully mindful of the importance of the questions involved, and with due respect to the Legislature, to grant the request to render an advisory opinion.

As stated in declining an earlier request for an advisory opinion: "The Court stands ready to examine carefully and to resolve expeditiously any controversy that comes to it out of application of (the Headlee Amendment and legislation pertinent thereto) in a factual setting." ¹²

KAVANAGH, C. J., and LEVIN, RYAN and MOODY, JJ., concur.

WILLIAMS, Justice (dissenting).

We respectfully disagree with the decision of the majority of our colleagues not to consider the request of the Senate for an opinion on HB 4700.

Ab initio, we understand and respect the weighty considerations that moved them to their opinion. However, we believe the considerations to the contrary are more weighty and worthy.

The request certainly concerns a "question(s) of law upon (a) solemn occasion(s) as to the constitutionality of legislation". Whatever the judicial decision on the impact of the so-called Headlee amendment will be, it will affect state and local financing as long as that provision is the law of this state.

The lack of an advisory opinion can paralyze legislative action or encourage erroneous action, that, if ruled unconstitutional, might well be an unrivaled mess to unravel. An advisory opinion, of course, is not definitive, but without one, the Legislature is much less well-advised to tackle a fundamental problem of government.

In our opinion both law and wisdom as well as comity require us to accept the Senate request for an advisory opinion.

FITZGERALD, J., concurs.

COLEMAN, Chief Justice (dissenting).

I

I write separately to add perspective to the request before us.

Simply stated, this Court has been asked by the Legislature to issue an advisory opinion ¹ as to whether the Treasurer of the State of Michigan must send a check or otherwise physically pay in cash to a local unit of government the percentage of state revenue required under what is known as the Headlee constitutional amendment (Headlee) ² or if the Legislature can, within the meaning of § 30 of Headlee ³ provide for state assumption of some expenditure presently required of a local unit, thus freeing the same amount of money for local purposes.

1979 P.A. 57 which implements Headlee provides in § 1a, ⁴ Inter alia, for the latter method.

If this section is found to be unconstitutional that is, such funds would not be "paid to" local government within the meaning of Headlee a different method of budgeting and appropriating would be necessary. Budgeting procedures for 1980-1981 already are in progress. The Legislature usually commences its consideration of that budget after presentation in January of any given year.

Justice Williams is accurate in his statement that the lack of an advisory opinion could encourage erroneous action which, if ruled unconstitutional "might well be an unrivaled mess to unravel".

II

This is exquisitely a "solemn occasion(s) as to the constitutionality of legislation". The drafters of the constitution could hardly have envisioned a more "solemn occasion". The state and all local units of government must provide financially for their governance. The request goes to the bedrock of orderly government. It is in compliance with the procedure required in 1963 Const. art. 3, § 8.

To illustrate the problem, assume that the state has $100 of costs to meet. By present calculations, the Headlee amendment requires that out of every dollar of state revenues the local governments receive approximately 41 cents (41%) and the state receives approximately 59 cents (59%). Thus, in order to fund $100 of state costs, there must exist approximately $169 of revenue (59% Of $169.49...