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In re House of Representatives Request

Supreme Court of Michigan

December 18, 2019

In re SENATE REQUEST FOR ADVISORY OPINION REGARDING CONSTITUTIONALITY OF 2018 PA 368 & 369

          Bridget M. McCormack, Chief Justice David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices

          ORDER

         On July 17, 2019, the Court heard oral argument on the requests by the House of Representatives and the Senate for an advisory opinion on the constitutionality of 2018 PA 368 and 2018 PA 369. On order of the Court, the requests are again considered, and they are DENIED, because we are not persuaded that granting the requests would be an appropriate exercise of the Court's discretion.

          Clement, J. (concurring).

         I concur in the Court's order denying the Legislature's request for an advisory opinion in this matter. I believe that this Court lacks jurisdiction under Const 1963, art 3, § 8 to issue an advisory opinion after the effective date of the legislation being scrutinized, and thus must refrain from doing so here notwithstanding the observations made by Justice Zahra about the importance of the legal issues presented. I believe we must instead wait for an "actual controvers[y] where the stakes of the parties are committed and the issues developed in adversary proceedings." Request for Advisory Opinion on Constitutionality of 1978 PA 33, 402 Mich. 968, 968 (1978).

         I. FACTS

         The Michigan Constitution allows Michigan voters to exercise various forms of direct democracy, one of which is to initiate legislation via petitions signed by a requisite number of voters. See Const 1963, art 2, § 9. Groups known as "Michigan One Fair Wage" and "MI Time to Care" sponsored, respectively, proposals known as the "Improved Workforce Opportunity Wage Act" and the "Earned Sick Time Act." Pursuant to MCL 168.473, they filed those petitions with the Secretary of State in the summer of 2018. The Secretary of State then notified the Board of State Canvassers, MCL 168.475(1), which canvassed the petitions to determine whether an adequate number of signatures was submitted, MCL 168.476(1). The Board ultimately certified both petitions as sufficient, [1] MCL 168.477(1), and, pursuant to Const 1963, art 2, § 9, the proposals were submitted to the Legislature. This constitutional provision required that the proposals were to "be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition [was] received by the legislature," with enactment not "subject to the veto power of the governor." The Legislature ultimately adopted both "without change or amendment" on September 5, 2018. 2018 PAs 337 and 338. Enacting them meant that they were not "submit[ted] . . . to the people for approval or rejection at the next general election." Const 1963, art 2, § 9. Had they been submitted to the people and adopted, they would only have been amendable with a three-fourths majority in the Legislature. Id.

         After the 2018 elections, the Legislature turned its attention to these policy areas once again. Although Attorney General Frank Kelley had, several decades ago, opined that "the legislature enacting an initiative petition proposal cannot amend the law so enacted at the same legislative session," OAG, 1963-1964, No. 4, 303, p 309, at 311 (March 6, 1964), a member of the Michigan Senate asked for an opinion on that issue and Attorney General Bill Schuette issued a new opinion which superseded the prior opinion and concluded that the Legislature could enact amendments to an initiated law during the same session at which the initiated law was itself enacted. See OAG, 2017-2018, No. 7, 306, p ____ (December 3, 2018). The Legislature thereafter did adopt certain amendments to these proposals with a simple majority, which-as ordinary legislation- the Governor signed into law. See 2018 PA 368 and 369. Because neither law contained a more specific effective date, both took effect on the 91st day after the 99th Legislature adjourned sine die. Const 1963, art 4, § 27; Frey v Dep't of Mgt & Budget, 429 Mich. 315, 340 (1987). The Legislature adjourned on December 28, 2018, see 2018 HCR 29, [2]so the effective date of 2018 PA 368 and 369 was March 29, 2019.

         On February 13, 2019-about a month after the convening of the 100th Legislature, see Const 1963, art 4, § 13-a member of the Michigan Senate wrote to newly elected Attorney General Dana Nessel seeking another opinion on whether 2018 PA 368 and 369 had unconstitutionally subverted the constitutional protections for initiated legislation, and a week later, both chambers of the Legislature adopted resolutions asking for this Court to issue an opinion under Const 1963, art 3, § 8. See 2019 HR 25; 2019 SR 16. On April 3, 2019, we ordered argument on whether to issue an advisory opinion. In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 503 Mich. 1003 (2019). We subsequently ordered additional briefing on the question of whether this Court has jurisdiction to issue an advisory opinion after the effective date of the legislation being scrutinized. In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 504 Mich. 918 (2019).

         II. ANALYSIS

         In my view, this Court lacks jurisdiction under our Constitution to issue an advisory opinion after the effective date of the piece of legislation being scrutinized-as is the case here. When construing the Michigan Constitution, "[o]ur primary goal . . . is to give effect to the intent of the people of the state of Michigan who ratified the Constitution, by applying the rule of 'common understanding.'" Mich Coalition of State Employee Unions v Michigan, 498 Mich. 312, 323 (2015). Generally, "[w]e locate the common understanding of constitutional text by determining the plain meaning of the text as it was understood at the time of ratification," although we "also take[] account of 'the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.'" Id. (citation omitted).[3] "The Address to the People, which was distributed to Michigan citizens in advance of the ratification vote and which explained in everyday language what each provision of the proposed new Constitution was intended to accomplish, and, to a lesser degree, the constitutional convention debates are also relevant to understanding the ratifiers' intent." Id. at 323-324. I believe that all of these sources of meaning-the text of the Constitution, the circumstances leading to its adoption, and the constitutional convention proceedings (i.e., the Address to the People and the convention debates)-indicate that this Court lacks jurisdiction to issue an advisory opinion after the effective date of the legislation being reviewed.

         A. CONSTITUTIONAL TEXT

         The Michigan Constitution provides that we exercise "the judicial power of the state . . . ." Const 1963, art 6, § 1. We have described that power as" 'the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.'" People v Richmond, 486 Mich. 29, 34 (2010), quoting Anway v Grand Rapids R Co, 211 Mich. 592, 616 (1920). We also are limited to exercising only the judicial power. Const 1963, art 3, § 2. Out of respect for that limitation, we have long taken the position that courts do not "decide or declare abstract questions of right for the future guidance of suitors." Street R Co of E Saginaw v Wildman, 58 Mich. 286, 287 (1885). It is beyond the judicial power to opine "where our conclusions could not be made effective by final judgment, decree, and process[.]" Anway, 211 Mich. at 622. Consequently, "our only constitutional authorization to issue advisory opinions is found in Const 1963, art 3, § 8 . . . ." Devillers v Auto Club Ins Ass'n, 473 Mich. 562, 588 n 57 (2005).

         So, what does Const 1963, art 3, § 8 provide? "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." We have recognized this text as effectively describing elements for advisory opinions." 'Michigan's Constitution . . . restricts advisory opinions to[:] [1] important questions of "law", [2] concerning the "constitutionality" of legislation, [3] "upon solemn occasions" when requested by either house of the Legislature or the Governor, [4] after the legislation has been enacted into law but before the effective date.'" Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395 Mich. 148, 149 (1975), quoting Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 482-483 (1973) (Levin, J., concurring).[4] Strictly speaking, the constitutional language only empowers the Legislature to ask for an opinion, and it imposes certain requirements when the Legislature does so. The next question is whether the constitutional provision is bilateral-whether it applies to this Court as much as the Legislature.

         There is no dispute that at least some of the provisions of Const 1963, art 3, § 8 apply to this Court as well as the Legislature. Thus, while that section does not affirmatively grant this Court the power to issue advisory opinions, there is no dispute that we can.[5] To hold that the Legislature may ask for an opinion but we may not issue one would render the constitutional text nugatory.[6] That the Legislature may only ask about questions of "law" confines us to answering questions that do not require factual development. See Request for Advisory Opinion on the Constitutionality of 1979 PA 57, 407 Mich. 60, 66 (1979), quoting Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich. 916 (1975) (refusing to issue an advisory opinion where "[t]he 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"). There is also no dispute that "[t]he Court may be requested to render an advisory opinion only concerning 'the constitutionality of legislation' . . . ." Id. at 67. See also Advisory Opinion re 1972 PA 294, 389 Mich. at 483 (Levin, J., concurring) ("It would appear . . . that in the context of an advisory opinion, we may not examine questions of fact, and questions concerning the interpretation or construction of a statute may not be considered except as those questions affect a constitutional question.") We have also held that the requirement that requests for advisory opinions not come until after legislation has been enacted into law constrains both the Legislature and this Court. Request for Advisory Opinion on 1975 PA 227, 395 Mich. at 149-150 ("Viewed against what the Constitution requires, § 200 of 1975 PA 227 is insufficient to invoke this Court's discretionary power to render an advisory opinion. . . . [T]he request was made during the enactment process itself, whereas the Constitution requires that the request be made after enactment and before the effective date.").[7]

         The question we face here is what to make of the "effective date" deadline in the Constitution. It clearly requires the Legislature to request an advisory opinion prior to the effective date, and when it asks too late, we may not opine. See Request for Advisory Opinion on Constitutionality of 1975 PA 222, 395 Mich. 361, 361 (1975); Request for Advisory Opinion on the Constitutionality of 1975 PA 195 & 196, 395 Mich. 642 (1975). But if the Legislature must ask prior to the effective date, I believe we must also opine before the effective date. Arguably, the resolution of this issue can be found in our discussion of the elements of advisory opinions. We said that" 'Michigan's Constitution . . . restricts advisory opinions to . . . after the legislation has been enacted into law but before the effective date.'" Request for Advisory Opinion on 1975 PA 227, 395 Mich. at 149 (citation omitted). While the question there was whether the Legislature's request had been made "after [the statute] ha[d] been enacted into law"-and is therefore perhaps distinguishable from our present concern-our remark certainly came in the course of closely considering the jurisdictional consequences of the timing requirements in the advisory-opinion process, and thus may well be the sort of" 'principle[] of law deliberately examined and decided by a court of competent jurisdiction [that] should not be lightly departed, '" People v Graves, 458 Mich. 476, 480 (1998), quoting People v Jamieson, 436 Mich. 61, 79 (1990) (opinion by Brickley, J.). We have more clearly remarked in subsequent nonbinding dicta that the timing requirements apply to this Court. See Wayne Co v Hathcock, 471 Mich. 445, 485 n 98 (2004) ("The only instance in which we are constitutionally authorized to issue an advisory opinion is upon the request of either house of the Legislature or the Governor-and, then, only '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.' ").[8] Regardless of how bound we ought to consider ourselves by these prior remarks of ours, I believe they are in any event correct. I have two reasons for this conclusion.

         First, I see no reason that all of the other requirements of the advisory opinion section would apply to both this Court and the Legislature, but the "before its effective date" requirement would not.[9] That the Constitution expresses any timing element at all implies restrictions on the prerogatives of the branches of government during the advisory-opinion process. Consider that-again, strictly speaking-the Constitution says only that the Legislature "may request the opinion of the supreme court . . . as to the constitutionality of legislation after it has been enacted . . . ." It does not expressly say that such a request cannot be made before legislation is enacted, for example by saying that the Legislature "may request the opinion of the supreme court . . . only after [the law] has been enacted." Instead, such a restriction is implied, although we have (correctly, in my view) said that it exists-and that it restrains both this Court and the Legislature.[10]See Request for Advisory Opinion on 1975 PA 227, 395 Mich. at 149-150. The Constitution then also requires that such a request be made "before [the legislation's] effective date."[11] The implicit requirement to wait until legislation has been enacted, and the explicit requirement to ask before it takes effect, creates a window of time within which requests must be made.

         I believe the existence of this window communicates limitations on both the ability to request an advisory opinion from us and our ability to render one. That the Legislature cannot ask (and we cannot opine) until the legislation is enacted appears to be aimed at requiring the Legislature to have committed to a particular course of action, leaving us out of acting as legislative counsel during the drafting process.[12] But what purpose is served by requiring that the request arrive before the effective date, if our opinion must not also be rendered before the effective date? If we can issue an advisory opinion after the effective date, why does the Constitution bother to expressly state that the request must arrive before then? What has changed the day after legislation takes effect such that the Legislature may not even ask but we can still opine? It seems apparent to me that the "before the effective date" deadline communicates a structural function similar to the "after it has been enacted into law" requirement.[13] In my view, that structural function is forcing the Legislature to request, and this Court to issue, an opinion before legislation takes effect, so the Legislature can remedy defects we identify.[14] Therefore, I believe the presence of the deadline for the Legislature to make the request also implies the same deadline for us to act upon it, in much the same way as the implied requirement that the Legislature not ask before legislation is enacted leaves us unable to opine. In other words, our ability to opine coincides with the window of time within which the Legislature can ask.[15]

         My second observation about the text of the Constitution is that I believe our extraordinary power to issue advisory opinions must be construed in light of our ordinary exercise of only the judicial power.[16] We are only expressly granted "the judicial power" in Const 1963, art 6, § 1-and, in fact, expressly confined to the judicial power, Const 1963, art 3, § 2-while our ability to issue advisory opinions is an implicit exception to that limitation under Const 1963, art 3, § 8. Careful consideration of the nature of our "judicial power" suggests we cannot issue advisory opinions after the effective date of the legislation being reviewed.[17] Advisory opinions are "a departure from the historic judicial scheme." Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich. 83, 86 (1977). In my view, the best way to reconcile these constitutional provisions is to conclude that advisory opinions can only be issued prior to the effective date of the legislation being scrutinized. An advisory opinion prior to the effective date of legislation is far more consistent with the nature of an advisory opinion-and therefore is in less tension with our ordinary constitutional constraint of being limited to "the judicial power"-than an advisory opinion after the effective date. Prior to the effective date, the Legislature can act on our advice to avoid the harm and confusion attendant to a statute's being found unconstitutional. After the effective date, harms have already been suffered; an abstract statement from this Court holding a law unconstitutional posteffectiveness may well introduce more confusion, rather than less, given that the issue would not be presented in the context of an actual plaintiff suffering a discrete harm that can be remedied with a court order. Consequently, I think the nature of the advisory-opinion process as a limited exception to our ordinary exercise of "the judicial power" means that the text of the Michigan Constitution itself suggests that advisory opinions after the effective date of legislation are not allowed.[18]

         B. THE CIRCUMSTANCES LEADING TO CONST 1963, ART 3, § 8

         As noted, our caselaw establishes that where the meaning of the constitutional text is doubtful, we can supplement it with other considerations, such as the circumstances leading to the adoption of the relevant provision. Here, those circumstances also indicate that issuing such opinions after the effective date of legislation was not contemplated. While Justice Markman asserts that "expediting an answer to a question that can only be answered by this Court . . . is the very purpose of an advisory opinion," I believe this history demonstrates the contrary. I believe the lesson of the story is that the advisory-opinion process was not intended to provide an expeditious answer, but rather to avoid the problems that can sometimes attend to a law being held unconstitutional after it becomes effective-to enable review of a statute before any injury has been suffered.

         The advisory-opinion provision was added to the Constitution in response to the fiscal and legal crises Michigan suffered in the middle decades of the 20th century relating to the sales tax. "The sales tax came to us in the depths of a great depression in order to provide the means for fulfilling desperate governmental needs." Lockwood v Comm'r of Revenue, 357 Mich. 517, 545 (1959).

By 1932, as a consequence of the Depression, [property] tax delinquency in Michigan had increased to frightening proportions, thus drastically reducing the yield from property tax assessments at the very time when additional monies were so desperately needed. By 1933 the delinquency rate was reported to be the highest in the country. . . . In November 1932 voters approved an amendment to the constitution that limited property taxes to no more than fifteen mills (1.5 percent) of assessed valuation.[19] This virtually forced the legislature to find new sources of revenues, because fifteen mills was inadequate to support state as well as county, township, and school programs. Thus in 1933 the legislature . . . passed [1933 PA 62, ][20] an act under which property taxes would go entirely to local units of government.[21] To replace the $23.5 million the state had received from property taxes in 1932, the legislature enacted [1933 PA 167, ][22] a 3 percent sales tax. [Dunbar & May, Michigan: A History of the Wolverine State (Grand Rapids: Wm. B. Eerdmans Publishing Co, 1995), p 523.]

However, "[t]he sales tax, powerful though it was, was vulnerable to avoidance." Lockwood, 357 Mich. at 546.

If the purchase, possibly of an automobile, were made not in Michigan but in a neighboring State the Michigan sales tax would not apply. Thus not only did the State of Michigan lose the tax moneys but a Michigan merchant lost the sale. . . . To meet the threat of avoidance a tax was enacted[, 1937 PA 94].[23] The article purchased in another State would be taxed in Michigan by virtue of its use here, and at the same rate[24] as if sold in Michigan in the first place. This was the use tax. Through its enactment the flight across the border was blocked, the Michigan merchant protected in his competitive position, and the State tax funds safeguarded. [Id.]

         The sales and use taxes were an effective form of government finance. The sales tax "was a tax easily collected and possessing the power of producing vast revenue." Id. at 545. "No meal could be consumed without its payment, no shelter built, no clothing purchased without meeting its exaction, and in advance. It fell on all alike, and without regard to want or ability to bear the tax. Vast sums poured into the State treasury." Id. at 545-546. "It soon became our leading source of revenue," id. at 546-547, and "[b]y 1937 this tax was bringing in over $55 million," Michigan, p 523.

         However, "the distribution of these funds" eventually became a problem. Lockwood, 357 Mich. at 546. First, "an amendment added to the constitution in 1939 forbade the use of revenues derived from the gasoline and weight taxes for anything but highways."[25] Michigan, p 524. Second, sales tax revenues also were constitutionally restricted.

The sales tax . . . satisfactorily met the state's needs for more than a decade. During World War II, in fact, revenues from this and other taxes had resulted in the accumulation of a sizable surplus in the state treasury. But local governmental units found themselves caught in a squeeze. Rising costs of materials as well as wages and salaries created a serious problem for them in view of the fifteen-mill tax limitation. At every legislative session mayors and school superintendents entreated the legislature for state aid. The response was meager. As a result of this situation, a constitutional amendment providing for the diversion of part of the state sales tax to local units was placed on the ballot by petition and adopted by the people in 1946.[26] [Id. at 551.]

         The amendment "took out of the hands of the legislature the spending of most of the 3 cents paid in." Lockwood, 357 Mich. at 547.

One-half of 1 cent went back to the counties and the other half to school districts. These diversions left 2 cents of the tax, but of those 2 cents almost half in turn, also was earmarked by the same amendment, leaving the legislature only a little over one-fifth of the total sales tax moneys available for distribution in its discretion. [Id.]

See also Michigan, p 551 ("At the time it was approved, it diverted some 77 percent of the state's revenues to local governmental units."). "The adoption of this 'sales tax diversion amendment' marked the beginning of a long period of financial problems and difficulties for the state government." Id. With "the bulk of the money . . . no longer available for the general expenses of government," "[i]t require[d] no great acuity to anticipate the next step since the path is worn smooth by constant use": "It was simply to increase the tax." Lockwood, 357 Mich. at 547.

         That avenue, however, was sealed off. "The sales tax, said our people, was not to follow this well-worn path of constant increases." Id. "An amendment [to Const 1908, art 10, § 23] adopted in 1954 limited the sales tax to 3 percent." Michigan, p 552. This prompted a fiscal crisis. "By July 1, 1958, the state treasury showed a deficit of $21.1 million. . . . The amount of the deficit increased to $95.4 million by July 1, 1959." Id. "On August 29 lawmakers passed a series of bills to increase tax revenues," and "[m]ain reliance was placed . . . upon [1959 PA 263, ]" id. at 560-561. This statute amended the Use Tax Act to increase the tax to 4%, except for articles on which 3% sales tax had already been paid-for those, the use tax would be only 1%. Moreover, the statute contained "accommodation devices" whose "combined effect . . . [was] to convert the tax from one purportedly levied upon the user for his use of personal property, and to be reported and paid by him, into a tax to be collected by the seller at the point of sale and for the collection and reporting of which he, and he alone, [was] responsible." Lockwood, 357 Mich. at 551-552. "In effect this was an addition to the 3 percent sales tax," but "[b]y calling it a use tax the legislature sought to evade the constitutional limit of 3 percent on the sales tax." Michigan, p 561.

         In an original action for mandamus in this Court, Charles Lockwood[27] challenged the constitutionality of the 1959 use tax amendment. We took "judicial notice of what every citizen of this State kn[ew] from his daily life": "[i]n actual operation of the tax, . . . [a] tax of 4% upon retail sales [was then] being collected by retailers in every city and village and township of Michigan," leaving "[t]he citizens of this State . . . under no illusion-the tax payable by them upon their retail purchases ha[d] been increased above the 3% rate despite the prohibition in their Constitution." Lockwood, 357 Mich. at 553-554. "[A] levy of 4% [was being] made on the sale of every loaf of bread, every pair of shoes, and every stick of furniture despite the constitutional limitation of 3%." Id. at 559. We held that the 1959 use-tax amendment was an unconstitutional effort to evade the constitutional sales-tax limit and ordered the state "to desist and refrain from levying, assessing or collecting the additional 1% tax . . . ." Id. at 560.

         Although the use-tax law had an effective date of September 1, 1959, see 1959 PA 263, § 2, and we issued our opinion in Lockwood holding it unconstitutional on October 22, 1959, several millions of dollars of tax revenue were unconstitutionally collected in the interim. At the constitutional convention, the proponent of the advisory-opinion section of our Constitution, future Secretary of State Richard Austin, remarked:

I am intensely interested in having a provision of this sort included in the constitution because I had quite a bit of experience with the 1959 law to increase the sales tax by way of a very peculiar means, through the use tax, to 4 per cent. Subsequently it was declared unconstitutional and there was well over $20 million of moneys collected from taxpayers in small amounts that could not be refunded to them.[28] It was collected from them unconstitutionally, but it could not be refunded to them because there were administrative problems involved. And I certainly would not like to see a recurrence of this kind of affair. . . . This would do what I think needs to be done. It would first require that both houses of the legislature pass on the legislation and even the governor sign the bill so that we do have a law which the court can rule on, at least as to the constitutionality of it, but at least give the court a chance to look at it before it becomes effective and taxes are collected under the defective law. [1 Official Record, Constitutional Convention 1961, p 1547.]

         The apparent problem the advisory-opinion section was trying to solve, in other words, was to prevent the collection of unconstitutional taxes in the first place.

         In my view, then, the history of the sales- and use-tax challenge builds on the constitutional text to further demonstrate that an advisory opinion after legislation's effective date is not contemplated by the Constitution. The reason we consider the circumstances leading up to the adoption of the constitutional provision is that a "constitutional provision must receive a reasonable construction, with a view to give it effect," which focuses on identifying "the mischief designed to be remedied . . . ." People ex rel Drake v Mahaney, 13 Mich. 481, 497 (1865).[29] The problem the advisory-opinion section was intended to solve was the one caused by Lockwood, but the problem there was not an insufficiently expeditious review of the statute. The case was an original action in this Court and was resolved slightly more than seven weeks after the legislation took effect.[30] Rather, the review was inadequate because the unconstitutionally collected taxes could not be returned to the taxpayers. The advisory-opinion provision was added to enable this Court to review legislation prior to its effective date, so that these kinds of problems could be avoided in the first place.[31]

         C. ADDRESS TO THE PEOPLE

         Finally, the Address to the People also indicates that advisory opinions after the effective date of legislation are impermissible. We have described the Address to the People "as an authoritative contemporary construction of the constitutional provisions that the citizens of Michigan were asked to vote on," Mich Coalition of State Employee Unions, 498 Mich. at 325, because "it was approved by the general convention . . . as an explanation of the proposed constitution" and "was widely disseminated prior to adoption of the constitution by vote of the people," Regents of the Univ of Mich. v Michigan, 395 Mich. 52, 60 (1975). In my view, the Address to the People confirms my interpretation of the advisory-opinion process in two ways. First, it makes clear that Mr. Austin's view of the relationship between the advisory-opinion process and the sales/use-tax controversy was not some personal idiosyncrasy. Rather, the Address said that "[a]n example of the possible exercise of th[e advisory-opinion] section would have been the matter of the 4-cent state use tax which was passed and later declared unconstitutional." 2 Official Record, Constitutional Convention 1961, p 3368. Second, and more importantly, the Address to the People flatly states that Const 1963, art 3, § 8 "empowers the supreme court to furnish advisory opinions . . . but only as to legislative acts that are already passed and signed by the governor, and before they become effective." Id. (emphasis added). What was communicated to the people, then, was (1) that advisory opinions could only be rendered "before [legislative acts] become effective, "[32] and (2) that the advisory-opinion process was meant to address the problem presented by Lockwood, which was judicial review of a statute after its effective date. This resolves any remaining doubt in my mind about how best to interpret both the constitutional text and the inferences that should be drawn from the advisory-opinion process being a response to Lockwood.[33]

         D. HISTORICAL PRACTICE

         On the other hand, and challenging my interpretation of Const 1963, art 3, § 8, is the fact that on several occasions we have issued advisory opinions after the effective date of the legislation being assessed. However, I find this past practice unpersuasive. First, on at least one occasion, we appear to have ignored even an uncontroversial constitutional timing requirement. In Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich. 41 (1975), we reviewed legislation which was given immediate effect on the date of enactment: July 26, 1974. Where there is no gap between a statute's date of enactment and its effective date, there is seemingly no opportunity for the Legislature to even ask (let alone for us to opine) after its enactment but before its effective date.[34] I am disinclined to defer to our past practice if we disregarded the Constitution's uncontroversial requirements. Second, most of the remaining posteffectiveness advisory opinions left the question of the timing of the request and the propriety of issuing a posteffectiveness opinion unaddressed.[35] This is certainly not a" 'principle[] of law deliberately examined.'" Graves, 458 Mich. at 480 (citation omitted).

         The one time we appear to have specifically concerned ourselves with whether it was too late for us to issue an advisory opinion is in In re Request for Advisory Opinion Regarding 2005 PA 71, 479 Mich. 1 (2007). In 1996, the Legislature had amended MCL 168.523 to require that voters present a photo ID in order to vote. Attorney General Kelley, however, opined that this requirement was unconstitutional. OAG, 1997-1998, No. 6, 930, p 1 (January 29, 1997). Thereafter, it went unenforced. A decade later, the Legislature adopted 2005 PA 71, which made certain other changes to MCL 168.523 with an effective date of January 1, 2007. On February 22, 2006, the House of Representatives asked for an advisory opinion as to the constitutionality of the original photo ID requirement. 2006 HR 199. We granted the request for an opinion and asked Attorney General Michael Cox to arrange for arguing both sides of the issue. In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 474 Mich. 1230 (2006). In those submissions, "the opposing Attorney General claim[ed] that this Court lack[ed] the constitutional authority to issue an advisory opinion in this case because the request for the advisory opinion was untimely." In re 2005 PA 71, 479 Mich. at 12. We characterized the opposing Attorney General's position as being "that the effective date of 2005 PA 71 was March 31, 1997, the effective date of 1996 PA 583." Id. We rejected that argument, because "the effective date of 2005 PA 71 was January 1, 2007." Id. at 13. It was in that context that we said that, "[b]ecause the House of Representatives requested an advisory opinion well before that date, this Court indisputably ha[d] jurisdiction . . . to render an advisory opinion in this matter." Id. We ultimately issued an opinion holding 2005 PA 71 to be constitutional on July 18, 2007, well after its January 1, 2007 effective date.

         It seems apparent to me that In re 2005 PA 71 does not answer the question at hand. The issue presented in that case ultimately related to how to handle amendments to pre-existing statutes; our Constitution requires that "[t]he section or sections of the act altered or amended shall be re-enacted and published at length," Const 1963, art 4, § 25, so the question was whether, in "re-enact[ing] and publish[ing] [them] at length" while making an unrelated change, the Legislature could give itself another opportunity to ask for an advisory opinion. Whether our resolution of that question was right or wrong, [36]we simply did not grapple with the current question, which is whether advisory opinions can be issued after the effective date of the legislation. "[A]ll that is necessary for a decision to be authoritative is to show application of the judicial mind to the subject." Detroit v Mich. Pub Utilities Comm, 288 Mich. 267, 299 (1939). I do not see where "the judicial mind" was "applied" to this issue in In re 2005 PA 71, and I therefore do not consider it authoritative. To the extent that it has been our practice to issue posteffectiveness advisory opinions, I would "refuse to perpetuate the error" of doing so. Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 219 (2007).

         III. LOOKING TO THE FUTURE

         Although it is my view that this Court lacks jurisdiction to issue an advisory opinion after the effective date of the legislation being reviewed, my position lacks majority support. So long as it is not the law that this Court cannot issue an advisory opinion under such circumstances, I do not anticipate refusing to participate in the future solely on the basis of my personal view that the Court cannot do so. However, even if my view of the jurisdictional question is not the law, the Legislature should be aware that this will inform my judgment about when it is appropriate for this Court to exercise its discretion to issue an advisory opinion. Because I do not think we should issue advisory opinions after the effective date of the legislation being scrutinized, I believe the Legislature should make every effort to give us a reasonable amount of time prior to the effective date to issue an opinion.[37]

         The Legislature did not go to such efforts in this matter. The relevant legislation was passed by the Legislature on December 4, 2018. See 2018 Senate Journal 1956- 1957 (No. 74, December 4, 2018). At that time, the Legislature could have extended the effective date if it wanted to. See Gale v Oakland Co Bd of Supervisors, 260 Mich. 399, 403 (1932) ("[F]requently laws are made effective long after the 90 days provided for by the Constitution."); OAG, 1937-1938, p 111, at 112 (October 7, 1937) ("The rule is well settled that where a constitution provides . . . that all statutes shall go into effect a designated number of days after the adjournment of the session at which same are passed, the terms of such a constitution are not violated by a provision of the legislature that an Act shall take effect at a date subsequent to the specified number of days."); Mayer, Effective Date of Michigan Public Acts, 56 Mich. St BJ 116, 116 (1977) ("In general, a 1976 public act which was not given immediate effect will take effect on March 31, 1977, unless the act contains a specified effective date after March 31, 1977. In that case the act takes effect on that specified date.").[38] It did not. The legislation was signed into law by the Governor on December 13, 2018, and filed with the Secretary of State the following day. See 2018 Senate Journal 2376 (No. 81, December 19, 2018). The Legislature could have requested an advisory opinion at that time. It did not. Instead, it did not request an advisory opinion from this Court for another 10 weeks, with the House of Representatives' request arriving only five weeks before this legislation's effective date. Under these circumstances, I would be disinclined to exercise this Court's discretion to issue an advisory opinion even if I felt that we had jurisdiction to do so.[39]

         IV. CONCLUSION

         I believe there are several reasons to conclude that we lack jurisdiction to issue an advisory opinion after the legislation being scrutinized has taken effect. First, I read the constitutional text as making two suggestions: (1) that the "effective date" deadline of Const 1963, art 3, § 8 is a structural element reflecting the expectation that we render advice to the Legislature before legislation takes effect, so that the Legislature can act on that advice before an injury occurs; and (2) that we are granted only "the judicial power," and limiting advisory opinions prior to the effective date of legislation is the best reconciliation of our ordinary exercise of judicial power with the implied and limited exception to that power that is the advisory-opinion process. Second, to the extent that the Michigan Constitution itself is less than perfectly clear on this, both the Address to the People and the convention debates show that the advisory-opinion process was added specifically to address problems akin to the sales/use-tax problem confronted in Lockwood, such that the Legislature could fix an unconstitutional law before it took effect to avoid implementing an unconstitutional law and ringing a bell that cannot be unrung. Third, the Address to the People squarely informed the voters who ratified the Michigan Constitution of 1963 that Const 1963, art 3, § 8 conferred on us the power to review the constitutionality of legislative acts, but "only . . . before they become effective."[40]

         I would, moreover, note that the laws at issue here are very similar to the sort scrutinized in Lockwood-untold numbers of hours have been worked in Michigan since these laws took effect on March 29, just as untold numbers of sales occurred with the unconstitutional sales tax applied to them. An advisory opinion at this point might introduce more confusion, not less, precisely because-were the laws held unconstitutional-the effect of such a pronouncement would be highly uncertain. At least as to those hours worked prior to our opinion, there would be nothing the Legislature could do to fix the constitutional defect; yet "our conclusions could not be made effective by final judgment, decree, and process" in the absence of a discrete injury suffered by actual parties. In such a circumstance, where our advice cannot be heeded but we have no actual solution we can provide in the form of a court order or judgment, I conclude that we lack jurisdiction to act-regardless of whether the amount of time that has passed is 1 day, or 100 days. Therefore, I concur in the Court's order denying the request for an opinion.[41]

          McCormack, C.J., joins the statement of Clement, J.

          Cavanagh, J. (concurring).

         I concur in the order denying the Legislature's request for an advisory opinion. Although granted the constitutional authority to do so, this Court rarely exercises its discretion to issue an advisory opinion. I believe that the most compelling reason for this is that advisory opinions are a departure from this Court's traditional role. They are neither decisions of this Court nor binding authority on this Court or on any other branch of government. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 460-461 n 1 (1973). "Requests for advisory opinions are an extraordinary exception to the typical process that brings cases to this Court. Absent are parties who have an actual stake in the outcome and a record fully developed in our lower courts." In re 2002 PA 48 (House of Representatives' Request for an Advisory Opinion), 467 Mich. 1203, 1203 (2002).

         I find Justice Clement's view of this Court's jurisdiction compelling, and I believe the textual clues and history Justice Clement discusses counsel against exercising any discretion we have to issue an advisory opinion under the circumstances presented here. The Legislature's requests for an advisory opinion as to the constitutionality of 2018 PA 368 and 2018 PA 369 were made before the laws' effective date but not, I believe, sufficiently in advance of the effective date to allow this Court a meaningful opportunity to carefully consider and decide the complex constitutional issues raised. Had the Legislature specified a later effective date for the laws, rather than allowing the laws to take effect sine die, it could have afforded the Court sufficient time to issue a decision prior to the effective date.[42] In fact, the requests could have been made as soon as the laws were enacted.[43] When the Senate and the House of Representatives requested an advisory opinion on February 20 and 21, 2019, respectively, this Court had just over one month to decide the complex constitutional question of whether the Court could and should exercise its discretion under Const 1963, art 3, § 8 and, if so, whether the "adopt-and-amend procedure" used by the Legislature was permissible under Const 1963, art 2, § 9.[44] Regardless of this Court's jurisdiction to issue an advisory opinion after the effective date of these acts, it is clear that the practical value to Michigan's citizens of such an opinion is much greater if it is issued before the laws become effective. I believe the diminished practical value of an opinion now cautions against exercise of the Court's discretion to issue an opinion.

         I respectfully disagree with Justice Zahra that, absent this Court's rendering an advisory opinion in the manner and form presented by this case, the State's economy will suffer unique uncertainty and employers will face a quandary about whether to follow the statutes as amended or to follow the preamendment version of the laws. While there is clearly much to debate about which version of the statutes should be the law, there is no genuine confusion about which version of the statutes is the law today. Michigan's citizens follow the law. And they will, undoubtedly, continue to follow the existing laws unless and until those laws are held to be unconstitutional by order of this Court in an actual case or controversy. An advisory opinion from this Court-whether issued today or before March 29, 2019-could not effect any real remedy to any citizen, be they employee or employer, actually injured by the contested laws.[45]

         Finally, given that the Legislature's use of the adopt-and-amend procedure is argued to be both controversial and political, I do not find it surprising that the request for an advisory opinion is supported by members of both political parties and by proponents and opponents of the initiatives. In my view, "the current divisive political climate in which we find our state and nation" referred to in Justice Zahra's dissent further cautions against, rather than in favor of, this Court entering into the fray absent an actual case or controversy.

         I concur in the Court's order denying the ...


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