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In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369

Supreme Court of Michigan

December 18, 2019

IN RE HOUSE OF REPRESENTATIVES REQUEST FOR ADVISORY OPINION REGARDING CONSTITUTIONALITY OF 2018 PA 368 & 369 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

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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, 414 N.W.2d 873 (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.

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In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 503 Mich. 1003, 929 N.W.2d 381 (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, 870 N.W.2d 275 (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, 870 N.W.2d 275. 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, 782 N.W.2d 187 (2010), quoting Anway v. Grand Rapids R. Co., 211 Mich. 592, 616, 179 N.W. 350 (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

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questions of right for the future guidance of suitors." Street R. Co. of E. Saginaw v. Wildman, 58 Mich. 286, 287, 25 N.W. 193 (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, 179 N.W. 350. 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, 702 N.W.2d 539 (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, 235 N.W.2d 321 (1975), quoting Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 482-483, 208 N.W.2d 469 (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

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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, 281 N.W.2d 322 (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, 281 N.W.2d 322. See also Advisory Opinion re 1972 PA 294, 389 Mich. at 483, 208 N.W.2d 469 (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, 235 N.W.2d 321 ("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, 235 N.W.2d 745 (1975); Request for Advisory Opinion on the Constitutionality of 1975 PA 195 & 196, 395 Mich. 642, 236 N.W.2d 62 (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

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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, 235 N.W.2d 321 (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, 581 N.W.2d 229 (1998), quoting People v. Jamieson, 436 Mich. 61, 79, 461 N.W.2d 884 (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, 684 N.W.2d 765 (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

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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, 235 N.W.2d 321. 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

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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

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scheme." Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich. 83, 86, 260 N.W.2d 436 (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.

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          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, 98 N.W.2d 753 (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, 98 N.W.2d 753.

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,"

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id. at 546-547, and "[b]y 1937 this tax was bringing in over $55 million," Michigan, p. 523, 151 N.W.2d 797.

          However, "the distribution of these funds" eventually became a problem. Lockwood, 357 Mich. at 546, 98 N.W.2d 753. 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, 151 N.W.2d 797. 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, 98 N.W.2d 753.]

         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, 98 N.W.2d 753.

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, 151 N.W.2d 797 ("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": ...


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