General Revision of the Michigan Constitution

CRC Special Report Michigan Constitutional Issues

No. 360-01 A publication of the Citizens Research Council of Michigan February 2010 First in a series of papers about state constitutional issues GENERAL REVISION OF THE MICHIGAN CONSTITUTION

Proposal 2010-01 on the November 2, 2010, statewide ballot will ask Michigan voters whether a constitutional convention should be convened for the purpose of a general revision of the state Constitution. The 1963 Michigan Constitution provides in Article XII, Section 3, that in 1978 and every 16 years thereafter the question of a general revision of the constitution shall be submitted to the electors of the state.

Options for Michigan Voters Proposal 2010-01 will ask Michigan electors to as- the qualifications, elections and returns of its mem- sess how well the fundamental law of the state serves bers. The delegates will be compensated for their as a framework for efficient, accountable govern- time and to incur additional cost through the ap- ment services that meets today’s economic and so- pointment of such officers, employees, and assis- cial needs. In November, voters will choose: to con- tants as it deems necessary; printing and distribu- vene a constitutional convention to draft a revised tion of documents, journals, and proceeds; and constitution to deal in a holistic manner with issues explanations and information dissemination about the perceived to be problematic; or to allow the 1963 proposed constitution. The Constitution does not Michigan Constitution to continue in its present form. dictate the length of time that a convention can use to draft a revised constitution. If Proposal 2010-01 is approved, Article XII, Section 3 of the Michigan Constitution requires a special pri- If Proposal 2010-01 is rejected by the voters, the mary and a special election to be held within six 1963 Constitution will remain in effect. The legisla- months to select convention delegates. Michigan’s ture and voters may continue to adapt the 1963 election law provides for four elections in a calendar Constitution to future economic and social needs by year, so the elections would occur in February and offering amendments to reform specific sections June of 2011. Article XII, Section 3 of the Constitu- viewed as problematic. If the question is rejected, it tion further provides that the electors of each repre- will automatically appear on the ballot again in the sentative district (110 districts) and the electors of year 2026. each senatorial district (38 districts) shall elect one delegate to the convention. Michigan voters decided against similar ballot questions in 1978 (640,286 Yes to 2,112,549 No) and The 1963 Constitution provides that the convention 1994 (777,779 Yes to 2,008,070 No). The 1963 Michi- would convene in Lansing on October 4, 2011. The gan Constitution has proven to be a living document, delegates are empowered to choose their own offic- having been amended numerous times over the 45 ers, determine the rules of proceedings and judge years since its adoption.

Wholesale Revision

A state constitutional convention elected by the tory with constitutional revision has tended to incre- people is free to fashion any kind of document it mentally build on existing constitutions, nothing pleases, subject only to restraints imposed by the would bind a 2011 constitutional convention to such United States Constitution as the supreme law of an approach. the land and subject, of course, to having its work Further, while a number of electors may agree upon ratified by the state’s electors. While Michigan‘s his- issues in need of constitutional reform, there are no

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CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues single, correct reforms to most of submit the results of its delibera- features commends itself to the the large and important questions tions to the state’s electors for people as a worthy instrument for that would confront a convention. approval. To merit this approval, the furtherance of effective and These are matters of opinion and a proposed revision of the con- responsible government directed judgment, and honest differences stitution must be a document that to the end of serving and promot- of view can readily be entertained. can be read and understood by ing the common good. citizens and which in meritorious In the end, a convention must

The Nature and Purpose of a State Constitution

The idea of a written constitution of these are so fundamental and tal objective is to establish the or- defining the structure of govern- familiar and their implications so gans of governmental power, to ment and enumerating the rights plain that they need not be de- define and distribute authority of the people as a limitation on veloped at length: among them, and to state limita- the powers of government is • That political power rests ul- tions on these powers. Secondly, deeply-rooted in Anglo-American timately in the people; the questions of direct participa- history. The adoption of the first • That the popular will is re- tion by the electors in the legisla- state constitutions preceded the flected in the constitution and tive process by means of the ref- drafting of the United States Con- in the institutions of represen- erendum and initiative and the stitution by the Philadelphia con- tative government designed mechanics of these processes re- vention of 1787 which established to serve the interests and quire attention. Finally, it may be the federal system under which welfare of the people; suggested that since the political we now operate—a system un- • That the organs of government process is such an inherent part of der which governmental power is are subject to the limitations government and the operation of divided between the federal or imposed by the people and by representative government, atten- central government and the fifty the rights retained by them; tion may well be given in the con- states of the Union. • That a constitution is funda- stitution to the roles that political mental and supreme law; and parties may play in Michigan’s state A constitution should serve the • That the courts in the exer- and local government. purpose of a fundamental organic cise of the power of judicial document: establishing, defining Apart from the electorate and the review have the responsibil- and limiting the basic organs of three branches of government, ity and the duty to uphold this power, stating general principles, the other organs or bodies that fundamental law and to and declaring the rights of the may be vested with constitutional refuse to enforce legislative people. status are public corporations. and other acts of government These may be divided into two found to be in conflict with it. American constitutionalism pre- categories: (1) municipal corpo- supposes certain basic principles In addition to these principles, a rations and other local govern- that find expression either ex- state constitution can be expected mental units including counties, pressly or impliedly in state con- to achieve a number of fundamen- townships, and metropolitan dis- stitutions as well as the constitu- tal objectives. The first fundamen- tricts and (2) public corporations tion of the United States. Some organized for specific purposes

CRC Board of Directors EUGENE A. GARGARO, Jr., Chair RICK DIBARTOLOMEO DANIEL T. LIS LYNDA ROSSI JEFFREY D. BERGERON, Vice Chair TERENCE M. DONNELLY ALEKSANDRA A. MIZIOLEK JERRY E. RUSH RANDALL W. EBERTS NICK A. KHOURI, Treasurer CATHY H. NASH MICHAEL A. SEMANCO JOSEPH R. ANGILERI DAVID O. EGNER PAUL OBERMEYER TERENCE A. THOMAS, Sr. JOHN T. BOZZELLA INGRID A. GREGG AMANDA VAN DUSEN MARYBETH S. HOWE BRYAN ROOSA BETH CHAPPELL KENT J. VANA JEFFREY P. GUILFOYLE, President

2 CRC Special Report on Michigan Constitutional Issues such as the state universities. ity for funding public education. tion, would partake of a pro- With respect to both classes, the It also could affect more narrow lixity of a legal code, and questions respecting constitu- concepts, such as government could scarcely be embraced tional position and authority—in- finance, the death penalty, and by the human mind. It would cluding, in the case of those in eminent domain. probably never be understood by the public. Its na- the first class, the important A constitution should not be an ture, therefore, requires that questions of home rule status— only its great outlines should are matters of basic concern. elaborate document. It should be be marked, its important relatively compact and economi- objects designated, and the In addition to establishing the cal in its general arrangement and minor ingredients which structure of state government, draftsmanship. Details should be compose those objects be municipal corporations and other avoided and matters appropriate deduced from the nature of local governments, and public for legislation should not be in- the objects themselves… . corporations, alteration of a state corporated into the organic docu- In considering this question, constitution has the potential to ment. Chief Justice Marshall then, we must never forget alter the basis upon which state stated this idea in classic form in that it is a Constitution we laws and judicial decisions are the course of his famous opinion are expounding. based. Amending or revising the in McCulloch v. Maryland. Justice Cardozo stated the mat- state constitution could affect ter more succinctly: broad concepts, such as home A Constitution to contain an accurate detail of all the sub- rule for local governments, the A Constitution states or ought divisions of which its great involvement of citizens through to state not rules for the pass- powers will admit, and of all elections, initiatives, and refer- ing hour but principles for an the means by which they expanding future. enda, and the state’s responsibil- may be carried into execu-

The Michigan Constitution

The 1963 Michigan Constitution Article III – General Govern- Article VI – Judicial Branch es- contains 12 articles, with several ment establishes Lansing as the tablishes the constitutional frame- sections contained within each seat of government and provides work for the general authority of article. In brief, these articles are: for a separation of the powers the judiciary to interpret the law. within the structure of state gov- Article I – Declaration of Rights ernment. Article VII – Local Government sets forth basic individual liber- contains many of the provisions ties which are to be secure from Article IV – Legislative Branch regarding the system of local gov- impairment by the actions of state establishes the constitutional ernment in Michigan, which in- government. framework for the conduct of leg- cludes counties, townships, cities islative powers through a Senate and villages, and authorities. Article II – Elections defines the and House of Representatives. qualifications of electors and pro- Article VIII – Education defines vides for the place, manner, and Article V – Executive Branch the role and responsibility of the time of elections. Article II also establishes the constitutional state for elementary-secondary discusses the board of state can- framework for the conduct of ex- education and higher education. vassers, recalls, the powers of ecutive powers by the governor, initiative and referendum, and lieutenant governor, attorney Article IX – Finance and Taxa- term limitation. Additional provi- general, secretary of state, and tion contains various limitations sions for term limitation are found certain boards and commissions. upon the otherwise plenary in Articles 4, 5 and 12. power of the legislature to raise

3 CRC Special Report on Michigan Constitutional Issues funds through taxation, ranging the beginning of terms of office, of governments have expanded from the proportion of value at a classified state civil service, a to support welfare programs and which property may be taxed, to merit system for employees of to more actively attract and en- requiring voter approval before local governments, and for the courage economic development. local governments may increase impeachment of civil officers. Although certain provisions of the certain taxes and indebtedness, 1963 Michigan Constitution are in to specifying how certain rev- Article XII – Amendment and violation of the United States Con- enues are to be expended. Revision provides for the amend- stitution, the framework for Michi- ment and general revision of the gan government is generally Article X – Property creates limi- Constitution. workable. Since adoption, 70 tations on the powers of eminent constitutional amendments have domain and escheats and en- The 1963 Constitution, Michigan’s been proposed; 30 of which have trusts to the state general super- fourth, is now 46 years old. Over gained approval from the elec- visory jurisdiction over all state that time Michigan’s population tors. If a constitutional conven- owned lands. has grown from 8 million to more tion is convened, it will have the than 10 million. Transportation goal of making Michigan govern- Article XI – Public Officers and and communication networks ment work better, not to solve a Employment provides for an have developed to connect people constitutional crisis. oath of office for public officers, and population centers. The roles

Series of Papers

Over the coming months, the Citi- time. The series will relate the age change in each article to set a zens Research Council of Michi- and length of the Michigan con- new direction for the state. Look gan will publish a series of pa- stitution relative to those of other for these papers to be released pers to provide information which states; provide a historical per- on roughly a bi-weekly schedule electors may use to decide spective of the 1963 Constitution; at www.crcmich.org/election and whether the convening of a con- and consider obsolete and prob- sign up for CRC’s e-mail updates stitutional convention is in the lematic provisions, as well as pro- to have notice of their release best interest of Michigan at this visions that voters may wish to delivered directly to your inbox.

4 CRC Special Report Michigan Constitutional Issues

No. 360-02 A publication of the Citizens Research Council of Michigan February 2010 Second in a series of papers about state constitutional issues A BRIEF MICHIGAN CONSTITUTIONAL HISTORY

At the November 2, 2010 general election, the voters of Michigan will decide whether to call a constitutional convention to revise the 1963 Michigan Constitution. The question appears on the ballot automatically every 16 years as required by the Constitution. The Constitution provides that a convention would convene in Lansing on October 4, 2011. If the question is rejected, it will automatically appear on the ballot again in the year 2026.

The 1963 Constitution is Michigan’s fourth adopted constitution. Only 10 states have revised and adopted a greater number of state constitutions. Michigan was one of 13 states to revise their state constitution between 1948 and 1975. Only two states have gone through the revision exercise in the years since.1 This paper is designed to explore the regular submission of constitutional revision questions to the voters and the evolution of the constitution that has occurred since Michigan’s first constitution was adopted in 1835.

Michigan Constitutional History

The people of Michigan have adopted four constitu- was twice the length of the Constitution of 1835 and tions (1835, 1850, 1908 and 1963), have rejected two its detailed provisions reflected the prevalent tendency (1867 and 1873) and failed to approve the calling of a of that period to incorporate into basic law provisions convention on 11 occasions (most recently in 1994). more properly left to statutes. In November 1850, the voters overwhelming approved the proposed constitu- Early Constitutions tion (36,169 in favor, 9,433 opposed). The 1850 Con- The Constitution of 1835. In 1835, the territorial coun- stitution included the provision that every 16 years, cil provided for an election of delegates to a constitu- and at other times as provided by law, the question of tional convention. Ninety-one delegates assembled in calling a constitutional convention automatically be Detroit in May and concluded their deliberations in June. submitted to the voters. However, calling a conven- The proposed constitution was submitted to the voters tion required approval of a majority of those voting at of the territory in October 1835, 15 months before Michi- the election and not just a majority of those voting on gan was admitted into the Union. It was overwhelm- the question. ingly approved (6,299 in favor, 1,359 opposed). Revision Attempts, 1867-1904 The 1835 Constitution has been praised by many po- General dissatisfaction with the 1850 document led litical scientists who claim it to be the best among the voters to approve by a three to one margin the calling four Michigan constitutions. It provided for election of of a constitutional convention in 1866, pursuant to the only the Legislature, Governor, and Lieutenant Gover- 16-year requirement. The 100 delegates were elected nor, with other state offices filled by appointment. It in April 1867; convened in Lansing in May; and ad- was the first state constitution to provide for the ap- journed in August 1867. The proposed constitution pointment of a state superintendent of public instruc- was rejected by the voters in 1868 (71,733 in favor, tion. The brevity and simplicity of the document has 110,582 opposed). been acclaimed. In 1873, the Legislature authorized the Governor to The Constitution of 1850. In 1849, the Legislature appoint an 18-member commission to study the 1850 submitted to the voters the question of calling a con- Constitution and propose amendments and revisions. stitutional convention to revise the 1835 Constitution. The voters approved the question and 100 delegates were elected in 1850. The delegates convened in June 1 The Book of the States, 2009 Edition, Volume 41, The and adjourned in August. The proposed constitution Council of State Governments, Lexington, KY, www.csg.org.

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

The commission submitted its for- Constitution was subject to constant before the voters. This effort also mal report for a revised constitu- revision. Michigan voters were failed. Once again, it lacked the tion to the Governor and the Leg- asked to amend the 1908 Constitu- necessary majority of votes cast in islature placed it on the ballot. In tion 122 times; of which 66 proposed the election, although the proposal November 1874, the voters re- amendments were adopted and 56 received the majority of votes on jected the proposed constitution by were rejected. By 1960, the Michi- the issue (821,282 in favor, a three to one margin (39,285 in gan Constitution had grown to 608,365 opposed). In 1958, favor, 124,034 opposed). 15,323 words. Despite the continu- 2,341,829 votes were cast in the ous attention and amendment, a election, but only 1,429,647 (or 61 Following the 1874 attempt to re- general dissatisfaction with the percent) voted on the question of vise the 1850 document, the ques- document created a growing desire calling a convention. tion of calling a constitutional con- to revise the constitution. vention was rejected by the voters In effect, failure to vote on the five times. Legislative action Attempts to Revise the Constitu- ballot question was counted as a placed the question on the ballot tion of 1908. Between 1926 and vote against the calling of a con- in 1890, 1892, and 1904, and the 1961, there were five referenda on vention under this provision. 16-year constitutional provision the question of revising the 1908 submitted the question to the vot- Constitution. The first effort, pur- It is significant that the vote fa- ers in 1882 and 1898. In each in- suant to the 16-year requirement, voring constitutional conventions stance, the majority of those vot- was rejected by the voters in No- increased with each successive ing in the election failed to approve vember 1926 (119,491 in favor, revision attempt between 1926 the proposal, although in 1892, 285,252 opposed). The next vote and 1958, with substantial favor- 1898 and 1904 the majority of on calling a convention in Novem- able majorities of those voting on those voting on the question gave ber 1942, again pursuant to the the issue achieved in 1948 and their approval. 16-year constitutional require- 1958. The next step in the effort ment, was rejected by the voters. to call a constitutional convention The Constitution of 1908 It received approval by a majority was to change the requirement for calling a convention from a major- In April 1906, the voters approved of those voting on the question ity of electors voting in the elec- the question of a general consti- (468,506 yes, 408,188 no), but not tion to a simple majority of those tutional revision that had been a majority of those voting in the voting on the question. placed on the ballot by legislative election. action. Ninety-six delegates were In November 1948, the Legislature Gateway Amendment and the elected. The convention convened submitted the question of general April 1961 Referendum. In 1960, in Lansing in October 1907 and constitutional revision to the vot- leading civic organizations in Michi- adjourned in March 1908. The ers. Although the majority of the gan developed an initiative proposal proposed constitution reflected votes on the question favored the to amend the 1908 Constitution to characteristics of the progressive proposal as they had in 1942, it simplify the calling of a constitutional reform movement including home failed due to the constitutional pro- convention. It provided for approval rule for cities. The proposed con- vision requiring a majority of votes of a convention call by a simple stitution was approved by the vot- cast in the election. majority of those voting on the is- ers in November 1908 (244,705 in sue, and altered the basis of repre- favor, 130,783 opposed). In 1958, the 16-year requirement sentation by authorizing one con- again placed a ballot proposal for vention delegate from each state Over the ensuing 53 years, the 1908 a general constitutional revision House and Senate district. The pro-

2 CRC Special Report on Michigan Constitutional Issues posal called for submission of the of only 23,421 votes (596,433 in House and 34 Senate districts. The question of general constitutional favor, 573,012 opposed). It is convention convened in October revision at the 1961 spring election, noteworthy that if the former con- 1961 and after seven months of specified time limits for electing del- stitutional requirement of a major- work, recessed. On August 1, egates and specified when and ity of those participating in the 1962, the final document of 19,203 where the convention should con- election had applied, the proposal words was approved by the convene. The gateway amendment was would have failed. vention for submission to the vot- approved by the voters in Novem- ers on April 1, 1963. (The 1963 ber 1960 (1,312,215 in favor, Michigan Constitutional Con- Michigan Constitution now has 959,527 opposed). vention of 1961-62 35,858 words.2) The new Consti- Delegates to the 1961 Constitu- tution was approved in a very close Pursuant to the new amendment, tional Convention were nominated vote (810,860 in favor, 803,436 the question of a general consti- in July 1961 and the 144 delegates opposed) and took effect January tutional revision was submitted to were elected in September on a 1, 1964. the voters in April 1961. The pro- partisan ballot from single-mem- posal was approved by a margin ber districts, one each from the 110 2 The Book of the States. Constitutional Issues in 1960

Michigan prior to the 1961-62 con- in the 1963 Constitution were ruled Judicial Branch Issues. The stitution convention was similar in in violation of the U.S. Constitu- method of selecting judges to the many ways to Michigan today. The tion and Michigan provides for re- state Supreme Court and lower state was hard hit by a national reapportionment and redistricting court levels was a primary issue cession in the late 1950s. Residents through the legislative process. awaiting the 1961 constitutional had a growing sense that state gov- convention. Additionally, the frac- ernment was dysfunctional: unable Executive Branch Issues. In 1961, tured judicial system, with justices to manage available resources and a common sense existed that the of the peace and municipal courts efficiently deliver services. The fol- executive branch was ineffectual for example, created uncertainty lowing were some of the issues that and needed changes. Executive in the minds of many forced to citizens considered before deciding officers were elected every two enter the court system. whether to convene a constitutional years. The direct election of eight convention: officers limited the administrative The 1963 Constitution unified the control of the governor. The ex- state judiciary into “one court of Legislative Branch Issues. Politi- ecutive branch was divided and justice” but did not change the cal control of the legislature was a subdivided into 120 administrative method of selecting Supreme Court primary issue. Under the 1908 agencies. The 1940 amendment justices. The method of selecting Constitution, Southeast Michigan that gave the civil service system Supreme Court justices would likely had a growing sense of under rep- constitutional status left the gov- again be an issue if a constitutional resentation. The three southeast- ernor and the legislature with little convention is convened in 2011. ern Michigan counties of Wayne, direct control over compensation Also, some may desire to align Oakland, and Macomb had about of the state’s workforce. court funding from a single source 48 percent of the state’s popula- to be consistent with the state’s tion, but only 26 percent of the While the executive branch is se- role in administering the lower senate seats and 43 percent of the lected and organized differently courts under the “one court of jus- house seats. under the 1963 Constitution, tice” concept. Michigan’s elected leaders today Southeast Michigan does not suf- continue to seek ways to stream- Educational Issues. Besides de- fer the same sense of under rep- line state government, including ciding whether to appoint or elect resentation under the 1963 Michi- examination of the number of state the state board of education and gan Constitution. A legislative departments, the role of boards the state superintendent of public issue to be considered today is the and commissions, and setting pay instruction, attention was directed fact that apportionment provisions and benefit levels of the executive at the system of higher education. branch employees. 3 CRC Special Report on Michigan Constitutional Issues

Fragmented control of the several discussion focused on whether re- front for voters deciding to call a state universities and the special form could eliminate duplication, constitutional convention. Electors powers and privileges accorded to waste, and inefficiency, while re- were considering whether gradu- the University of Michigan, Michi- taining democratic and responsible ated income taxes should be au- gan State University, and Wayne government. Some contended thorized; how to free the legisla- State University were the primary that the current governmental sys- ture from restrictions on taxing and educational issues. tem did not provide an adequate spending powers created by high structure for meeting area-wide or levels of revenue dedications or Today, the autonomous university metropolitan problems that usually earmarking; whether the state’s system remains a contentious is- extend beyond the present politi- limitations on borrowing should be sue. Some may argue that lan- cal boundaries. altered; if there was a need to re- guage should be included to de- move or raise property tax limita- fine a minimum level of funding for The 1963 Constitution did not in- tions to increase local taxing education in addition to the cur- troduce any major reforms to power; and whether to continue rent provisions requiring the leg- Michigan’s structure of local gov- existing provisions requiring a uni- islature to “maintain and support ernment and these issues remain form rule of taxation. a system of free public elementary core to conversations about poten- and secondary schools…” tial reforms to enable local govern- Although state and local taxation ments to better provide services has evolved significantly since the Local Government Issues. Dis- in an increasingly global economy. early 1960s, electors are again agreement over whether perceived confronted with the constitutional changes caused by increasing ur- Finance and Taxation Issues. issues of graduated income taxes, banization, and improvements in Because Michigan had just come excessive tax earmarking, state transportation and communication through a severe recession and and local tax and spending limita- especially, required a re-definition had struggled to maintain balanced tions, and the uniform rule of taxa- of the role of existing governmen- state budgets, several finance and tion when considering the need for tal units was an issue in 1961. The taxation issues were at the fore- a 2011 constitutional convention.

CRC’s Con-Con Papers

The Citizens Research Council of Michigan was extensively involved in analyzing the 1908 Michigan Constitu- tion and assisting the 1961 constitutional convention. Some of the research papers about these topics are available on the CRC website. To view these papers, go to: Michigan Constitutional Issues, CRC Report 201, June 1960, www.crcmich.org/PUBLICAT/1960s/1960/rpt201.pdf A Primer on State Government Organization in Michigan, CRC Report 203, October 1960, www.crcmich.org/ PUBLICAT/1960s/1960/rpt203.pdf A Comparative Analysis of the Michigan Constitution (Vol. 1 & Vol. II), CRC Report 208, October 1961, www.crcmich.org/PUBLICAT/1960s/1961LIST.HTM#208 The State Constitution: Its Nature and Purpose, CRC Memo 202, October 1961, www.crcmich.org/PUBLICAT/ 1960s/1961/memo202.pdf Constitutional Aspects of State-Local Relationships - I: Municipal and County Home Rule for Michigan, CRC Memo 203, October 1961, www.crcmich.org/PUBLICAT/1960s/1961/memo203.pdf Constitutional Aspects of State-Local Relationships - II: Metropolitan Government, CRC Memo 205, November 1961, www.crcmich.org/PUBLICAT/1960s/1961/memo205.pdf State Ballot Issues – A General Revision of the Laws, CRC Council Comments 737, October 1962, www.crcmich.org/ PUBLICAT/1960s/1962/cc0737.pdf A Digest of the Proposed Constitution, CRC Report 213, November 1962, www.crcmich.org/PUBLICAT/1960s/ 1962/rpt213.pdf An Analysis of the Proposed Constitution, December 1962, www.crcmich.org/PUBLICAT/1960s/1962/apc01-11.pdf

Other papers have not yet been put in electronic format on the CRC website (Starting at www.crcmich.org/ PUBLICAT/1960s/1960LIST.HTM). If you wish to review papers that are listed but not available online, please 4 contact [email protected] to request a copy. CRC Special Report Michigan Constitutional Issues

No. 360-03 A publication of the Citizens Research Council of Michigan March 2010 Third in a series of papers about state constitutional issues AMENDING THE MICHIGAN CONSTITUTION: TRENDS AND ISSUES

In Brief

The 1963 Michigan Constitution has been amended 31 times since it went into effect in January 1964, nearly doubling its length and adding to its complexity. Much of the additional length has consisted of changes that could have been made statutorily or that simply elevated statutory provisions to constitutional status.

The modern era of constitutional amendment in Michigan began with the adoption of the initiative in 1913. The 1908 Constitution was amended 69 times in 126 attempts and, by the end of the 1950s, pressure developed to replace the old document with a new one.

The articles of the 1963 Constitution most proposed for amendment have been Article IV (the legislative article), and Article IX (the finance and taxation article). Others subject to frequent amendment have been Articles I (Declaration of Rights), V (Executive Branch), and VIII (Education). In all, there have been 35 amendments to articles out of 80 proposed changes. (Some of the 31 successful proposals amended more than one article.)

Early amendments centered on the powers and structure of government, particularly issues of judicial selection and tenure and the State Officers Compensation Commission.

The period from the mid-1970s to the mid-1990s was dominated by issues arising from the so-called “Tax Revolt.” In that period, 15 proposed amendments that would shift, reduce, or limit the growth of taxes were placed before the voters. Of these, 13 were defeated, with only the Headlee Amendment (1978) and Proposal A (1994) being adopted, but they framed the debate on government’s claim on economic resources for two decades.

Recent years have seen the rise of amendments flowing from social agendas, such as prohibition of same-sex marriage; prohibition of certain affirmative action programs; and limitations on the expansion of gambling.

A review of the amendment history of the 1963 Michigan Constitution leads to several conclusions: • Many of the amendments made changes that could have been accomplished by statute and have added significant length and complexity to the document; • Addition of provisions of a statutory nature can result in “snowballing” of amendments because it becomes necessary to amend the Constitution in order to change detailed language; • A common theme of amendments, especially since 1992, has been that of weakening the legislature.

With the exception of 1990, Michigan voters have appearing on any one ballot has ranged from one, in been called upon to consider at least one proposed several elections, to 10, in 1978. amendment to the 1963 Michigan Constitution in every even numbered year since 1966, as well as in With the passage of Proposal 08-2 of 2008, the Con- 1981, 1989, and 1993. The number of proposals stitution has been amended 31 times since in went

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues into effect in January 1964. These be brief and sparing in detail as statutorily, either by the legislature 31 amendments have increased its befits a basic document intended or by statutory initiative. length from 19,203 words in the to endure and to be accessible to original document to 36,525, a its citizens. Even upon its adop- Michigan is one of 18 states that growth of 90.2 percent.1 While tion, the current Michigan Consti- have both legislative and initia- there may be no way of determin- tution was slightly longer than tory methods of placing proposed ing the optimum length of a state most state constitutions and, while constitutional amendments be- constitution, constitutional schol- some of the amendments have fore the voters for their approval. ars generally agree that it should made changes that could have The adoption of the voter initia- been made only by amending the tive early in the life of the 1908 1 Council of State Governments, Book Constitution, most of the changes Constitution marks the beginning of the States 1964-65 and 2009. CRC that have contributed to its growth of the modern era of constitu- Calculations. could have been accomplished tional amendment in Michigan.

A Century of Constitutional Amendment in Michigan

The Initiative Comes to support for proposed reforms led courts in 1917. Following the end Michigan a number of citizens to form or- of the Progressive Era, the wind ganizations aimed at promoting went out of the sails of the direct The initiative, in which citizens a means of circumventing those democracy movement and the may circulate petitions that force elected bodies to achieve legisla- only states to adopt the initiative proposed constitutional amend- tive goals. The means chosen and referendum since then have ments (or statutes) onto the bal- was the voter initiative, which, been Florida in the late-1960s and lot, and the referendum, in which together with the referendum and Mississippi, which restored its pro- legislatures place such issues recall, was expected to give citi- cess in 1992. before the voters, form the basis zens the tools to hold their elected of constitutional amendment in representatives to account. Early Michigan Experience Michigan. Their arrival, a century Movement in Michigan toward In 1898, South Dakota became ago, created the amendment pro- adoption of the initiative began the first state to amend its consti- cess now familiar to Michigan in the mid-1890s with the forma- tution to provide for the initiative voters. tion of the Direct Legislation Club, and the referendum. Four years which, with the support of Detroit later, Oregon did the same thing National Roots mayor and later Michigan gover- and, over the following decade, 13 Associated with the Progressive nor, Hazen S. Pingree, pushed for more states, including Michigan, Movement, the roots of the voter the voter initiative to facilitate followed suit. All of the states initiative in United States are adoption of a reform agenda. adopting the initiative and refer- found in the 1880s and 1890s Their efforts did not meet with endum in this period were in the when dissatisfaction with close success until adoption of the 1908 Midwest and Far West, with the relationships between legislative Constitution, which contained a exception of Mississippi, whose bodies and various interests, in- provision for the initiative that provisions, adopted in 1912, were cluding railroads and utilities, and was, however, so restrictive that declared unconstitutional by state frustration in achieving legislative ever using it was doubtful.

CRC Board of Directors EUGENE A. GARGARO, Jr., Chair TERENCE M. DONNELLY ALEKSANDRA A. MIZIOLEK JERRY E. RUSH JEFFREY D. BERGERON, Vice Chair RANDALL W. EBERTS CATHY H. NASH MICHAEL A. SEMANCO NICK A. KHOURI, Treasurer DAVID O. EGNER PAUL OBERMEYER TERENCE A. THOMAS, Sr. JOSEPH R. ANGILERI INGRID A. GREGG BRYAN ROOSA AMANDA VAN DUSEN BETH CHAPPELL MARYBETH S. HOWE KENT J. VANA RICK DIBARTOLOMEO DANIEL T. LIS LYNDA ROSSI JEFFREY P. GUILFOYLE, President

2 CRC Special Report on Michigan Constitutional Issues

In 1913, the Constitution was mented, spirituous or intoxi- effect of the first two successful amended to permit the initiative cating liquors, except for voter initiatives was to adopt pro- (both constitutional and statu- medicinal, mechanical, hibition and then to repeal it. tory) and the referendum in es- chemical, scientific or sac- sentially the same form as they ramental purposes. The third successful initiative, however, had a lasting impact. appear in the 1963 Constitution The amendment passed by a Also adopted in 1932, this amend- and direct democracy in Michigan margin of 55 percent-45 percent. became a reality. ment, emblematic of the Great “Forever” lasted only 16 years, Depression, added a Section 21 One of the movements prominent because in 1932, anticipating the to Article X of the 1908 Constitu- in the Progressive Era was the 21st Amendment to the U.S. Con- tion (the finance article) establish- temperance movement. In 1916, stitution, the second successful ing the 15-mill limit on the prop- anticipating the adoption of the initiated constitutional amend- erty tax rate, which, in modified th 18 Amendment to the U.S. Con- ment in Michigan established a form, remains in the current Con- stitution, the first successful ini- liquor control commission to “ex- stitution. It was significant in and tiated amendment to the Michi- ercise complete control of the al- of itself, but it also signaled the gan Constitution was a measure coholic beverage traffic with the beginning of the use of the con- state, including the retail sales stitutional initiative to attempt to Providing for prohibition in shape state and local tax policy. the state forever of the thereof.” An electorate, appar- ently thirsty and weary of orga- During the 30 years beginning in manufacture, sale, keeping 1932, of 24 initiated proposed for sale, giving away, bar- nized crime, adopted this amend- amendments, 10 related to state tering or furnishing of any ment by a margin of 68 vinous, malt, brewed, fer- percent-32 percent. So, the net taxation (four were adopted).

Amending the 1908 Constitution: Summary

Beginning in 1910 and ending in frage, authorization of the statu- The initiative was used in two 1961, 126 amendments to the tory initiative and referendum and significant amendments (dedi- 1908 Michigan Constitution were the recall (all legislatively pro- cating gas and weight taxes to submitted to the voters. Of these, posed) and creation of a state civil highway purposes in 1938 and 69 were approved and 57 were service (proposed by initiative). dedicating a significant portion rejected. The success rates of the Non-partisan election of the ju- of the state sales tax to schools proposals submitted by the leg- diciary was proposed by initiative and local government in 1946) islature and initiated proposals and rejected by the voters, but to limit the latitude of the legis- were dramatically different. Leg- when it was proposed by the leg- lature in budgetary determina- islatively-proposed amendments islature several years later, it was tions. By the late-1950s, about were approved 69 percent of the adopted. Other amendments 70 percent of state revenues time (59 approved; 26 defeated), were responsive to the need for were earmarked, hampering the while initiated proposals were massive infrastructure invest- ability of the state to deal with a approved 24 percent of the time ments brought about by urban- budget crisis at that time. Reduc- (10 approved; 31 defeated). ization and the proliferation of the ing the proportion of constitu- automobile, such as bonding au- tionally-dedicated taxes became The subjects of the proposals thority for drainage districts and one of the leading arguments in ranged widely, but also reflected highway construction (legisla- favor of revising the Michigan the periods during which they tively proposed) and the dedica- Constitution. were offered. Progressive Era tion of gas and weight tax rev- reforms included woman suf- enues (initiatory). Among initiated proposals re-

3 CRC Special Report on Michigan Constitutional Issues jected by the voters were com- rejected, a success rate of 86 cessive earmarking of taxes, and pulsory school attendance, autho- percent. Along with 51 previous a system of legislative represen- rization of an income tax, and amendments, these new provi- tation skewed toward rural inter- county home rule. sions gave the Constitution the ests. These issues, among oth- appearance of a patchwork quilt ers, led a number of groups to In the decade beginning in 1951, of trivia and excessive detail, support the calling of a constitu- 18 proposed amendments were which provided for far too many tional convention. adopted, while only three were executive branch agencies, ex-

Amending the 1963 Constitution

The 31 amendments to the 1963 Judicial Tenure Commission, re- which prohibited direct or indirect Constitution have resulted from 68 quired the legislature to establish state aid to non-public schools attempts, which began in Novem- a State Officers Compensation and pupils. This came in reac- ber 1966 with an unsuccessful Commission, and prescribed a tion to legislation passed in 1970 proposal to lower the minimum method of filling judicial vacancies. that provided that the state would voting age from 21 to 18. The pay a portion of the salaries of first successful attempt came in The first use of the initiative to lay teachers teaching secular sub- August 1968 with the passage of amend the 1963 Constitution jects in non-public schools. three legislatively-proposed came in 1970 with the passage amendments that established the of Proposal C (anti-parochiaid),

Table 1 1963 Michigan Constitution: Amendment Approval Rate by Article (1964-2008)

Joint Resolutions Initiative Petitions Total Percent Percent Percent Article Attempts Adopted Adopted Attempts Adopted Adopted Attempts Adopted Adopted I 4 4 100.0 3 3 100.0 7 7 100.0 II 2 0 0.0 1 1 100.0 3 1 33.3 III 0 0 0.0 0 0 0.0 0 0 0.0 IV 20 4 20.0 4 3 75.0 24 7 29.2 V 2 1 50.0 3 1 33.3 5 2 40.0 VI 3 3 100.0 0 0 0.0 3 3 100.0 VII 0 0 0.0 0 0 0.0 0 0 0.0 VIII 1 1 100.0 4 1 25.0 5 2 40.0 IX 16 8 50.0 13 2 15.4 29 10 34.5 X 1 1 100.0 0 0 0.0 1 1 100.0 XI 0 0 0.0 2 1 50.0 2 1 50.0 XII 0 0 0.0 1 1 100.0 1 1 100.0

Total 49 22 44.9 31 13 41.9 80 35 43.8

Note: 80 attempts to amend specific articles in 68 proposals Neither legislative joint resolutions nor initiative petitions enjoyed a better than 50 percent overall success rate. If, however, Article IX is excluded, initiative petitions were successful 61.1 percent of the time. If Article IV is excluded, joint resolutions were successful 62.1 percent of the time.

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Articles Frequently Subject • Proposal B (1994) Limiting tion proposals (1980, 1981, 1989, to Amendment criminal appeals and 1993); one would have increased the sales and use taxes Of the 12 articles in the 1963 The last three were placed on the (1989); one was a proposal to Michigan Constitution, five (I, IV, ballot by initiative petition and lower the minimum drinking age V, VIII, and IX) have been the reflect the ideological struggles of to 19 (1980); and one would have subject of 87.5 percent of the the last several years: established a railroad redevelop- proposed amendments, with Ar- • Proposal 04-2 (2004) Recog- ment authority (1978). Of the ticles IX (finance) and IV (legis- nizing only an agreement be- nine that were aimed at legisla- lative) leading by a wide margin. tween one man and one tive powers and structure, two Table 1 shows the number of woman as “a marriage or dealt with legislators being ap- times each article has been pro- similar union for any purpose” pointed or elected to other offices posed for amendment, the means (1968 and 1972); two dealt with • Proposal 06-2 (2006) Ban- of proposal, and the success rate. legislative approval of administra- ning certain governmental (Note that, while the Constitution tive rules (1984 and 1986); and affirmative action programs has been proposed for amend- others dealt with the SOCC • ment 68 times, several of the pro- Proposal 08-2 (2008) Legal- (1986); powers of the lieutenant posed amendments related to izing human embryonic governor (1980); civil immunity more than one article, which ex- stem cell research for legislators (1980); establish- plains the 80 times articles have ment of the State Library of Michi- been proposed for amendment Article IV (Legislative Branch) gan in the legislature (1986); and and the 35 times articles have There have been 24 proposals to lowering the minimum age of leg- been amended.) amend Article IV, with only seven islators from 21 to 18 (1976). being approved by the voters. Of Article I (Declaration of Rights) the 20 legislative proposals, four Initiated proposals to amend Ar- ticle IV have succeeded in three Seven amendments have been were adopted, two of which dealt of four attempts: proposed to Article I and all seven with the State Officers Compen- were successful. The first four, sation Commission (SOCC): • Proposal D (1978) Increase proposed by the legislature, dealt • Proposal 2 (1968) Require the minimum drinking age with criminal procedure: the legislature to create the from 18 to 21 • Proposal A (1972) Trial by SOCC • Proposal B (1992) Term lim- jury of fewer than 12 jurors • Proposal A (1972) Permit its for legislators in misdemeanor cases the legislature to authorize • Proposal 04-1 (2004) Re- • Proposal K (1978) Permit a state lottery quire voter approval of the courts to deny bail under • Proposal A (1982) Reform- extension of gambling and certain circumstances in vio- ing legislative immunity certain new state lottery lent crimes from civil arrest and process games • Proposal B (1988) Rights for during legislative sessions The one defeated initiated pro- victims of crimes • Proposal 02-1 (2002) Require posal would have required two- the legislature to act affirma- thirds legislative approval of stat- tively on SOCC proposals Public Act 219 of 1999 changed the utes intervening in municipal concerns of general purpose lo- numbering of ballot proposals from The 16 legislative proposals to letters to 3 or 4 numbers: the first cal governments (2000). amend Article IV that were re- two digits are the last two digits of jected by the voters include seven the year of election and the next Article V (Executive Branch) digit(s) indicates the order in which whose purposes were not aimed Two of the five proposed amend- the question was filed to appear directly at legislative powers or ments to Article V were adopted; on the ballot. structure. Four were tax limita- a legislative proposal: 5 CRC Special Report on Michigan Constitutional Issues

• Proposal M (1978) Replace Article IX (Finance and Taxation) Tax and Spending Limitations the State Highway Commis- As might be expected, the finance The use of the ballot to attempt sion with the State Trans- and taxation article has attracted to limit state and local taxes, portation Commission the most attention from those which began with the 15-mill property tax limit in 1932, And an initiated proposal: interested in amending the 1963 Constitution. Despite the atten- reached full flower in the two • Proposal B (1992) Term lim- tion, however, the success rate decades from the mid-1970s to its for the governor, lieuten- has not been high. Of 29 pro- the mid-1990s. Fifteen propos- ant governor, attorney gen- posals, only 10 (34 percent) have als reached the ballot during this eral, and secretary of state. passed. Even this is somewhat period, but only two passed, one misleadingly high in that six of the initiated proposal and one legis- The defeated attempts to amend ten successful amendments were lative proposal: Article V include a legislative pro- designed to enshrine various • Proposal E (1978), the posal restricting the powers of the natural resources trust funds and eponymous Headlee lieutenant governor (1980); and the Veterans’ Trust Fund in the Amendment2, was an initi- initiative petitions that would Constitution, beyond the reach of ated proposal which limited have given constitutional status the legislature, meaning that the state revenue to a fixed per- to the Department of State Po- other 23, most of which were tax- centage of state personal lice (1982) and that would have ing and spending limitations, had income, created new prop- provided for the election of the a success rate of only 17 percent. Public Service Commission erty tax limitations, and pro- (1982). The success rate in amending vided for payments to local Article IX has not been high and units of government for Article VIII (Education) there has not been a taxing and state mandates. Of the five proposals placed on the spending limitation proposal on • Proposal A (1994) was a ballot to amend Article VIII, three the ballot since 1994. Neverthe- legislative proposal that pro- have dealt with aid to non-public less, the number and potential vided for a dramatic shift of schools. The successful propos- significance of the proposals to funding of school operations als were an initiated proposal: amend Article IX warrant a some- from the property tax to the what more detailed review than state sales tax, a modified • Proposal C (1970) Prohibit for the other articles. acquisition valuation system direct or indirect aid to non- for determining taxable public schools The proposals to amend Article IX property values, and differ- can be grouped into five catego- ential taxation of business And a legislative proposal: ries: 1) Tax and spending limita- and residential property. • Proposal A (1998) Change tions (tax shift, tax reduction, tax (Proposal A could not be the word “handicapped” to growth limitation); 2) Greater considered by the voters the word “disabled” in Sec- progressivity; 3) Tax increase; 4) solely on its merits because tion 8 Revenue dedication; and 5) Fi- the legislature had passed a nance. Some of the proposals statute with similar provi- The defeated proposals were all encompassed categories 1 and 4, sions involving increasing the result of initiated petitions. but will be covered here in accor- the income tax instead of Two were attempts to remove the dance with their primary purpose. the sales tax, which was to prohibitions against vouchers im- go into effect in the event posed by Proposal C of 1970 (1978 and 2000). One provided for lo- Note: Solid bullets denote the cal school board responsibilities as successful amendments. Hollow 2Richard Headlee was an insurance a part of a much larger tax pro- bullets denote the unsuccessful executive and later gubernatorial posal (Smith-Bullard, 1980). attempts to amend Article IX. candidate.

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Proposal A was rejected.) o Proposal A (1993) Modified property tax assessment ra- acquisition value system for tio from 50 percent to 25 A target, if not the principal tar- determining taxable value percent of true cash value get, of every proposed tax limi- for property tax; reduce and place other limits on tation proposal was the property property tax for school op- state finances (First “Tisch” tax. The dilemma faced by those erations; create foundation proposal3) wishing to reduce the property plan for school support; in- o Proposal D (1980) Roll back tax, however, was the overarching crease sales tax from 4 per- assessments; reduce the as- role played by that tax in financ- cent to 6 percent (foreshad- sessment ratio; institute a ing local government, the services owed successful Proposal A modified acquisition value sys- of which, especially public safety of 1994) tem of determining taxable and education, are among those value; limit the power of the most valued by the public. The There were four unsuccessful ini- legislature to impose taxes least disliked tax, the sales tax, tiated tax shift proposals: (Second “Tisch” proposal) is levied by the state and may not o Proposal C (1972) Limit o be levied by local government Proposal C (1984) Roll back property tax for school, under the current Constitution. newly adopted taxes, sub- county and township pur- As a consequence, the majority ject to restoration by voter poses; establish state tax of tax limitation proposals pro- approval; stringent super- program for school support posed a shift from reliance on the majority or voter approval (Would have resulted in locally-levied property tax to the requirements for new taxes overall tax increase) state-levied sales tax. This ap- (“Voter’s Choice”) proach did not find favor with the o Proposal H (1978) Eliminate Tax growth limitations have voters until Proposal A was property tax for school op- sought not to shift the burden adopted—although the voters erations; require legislature from one tax to another or to re- were not offered the choice of to establish a program of duce government taxing and Proposal A or the status quo. state taxation to support K- 12 education spending, but to place limits on growth. The successful Headlee Unsuccessful tax shift proposals o Proposal A (1980) Reduce Amendment was such a provi- have included five legislative pro- property tax; shift the bur- sion. A somewhat similar initi- posals: den to state taxes (Overall, ated proposal failed two years net tax increase) o Proposal C (1980) Reduce before the adoption of the property tax; increase state o Proposal C (1992) Exempt Headlee Amendment: sales tax from 4 percent to property tax from portion of o 5.5 percent school operations; institute Proposal C (1976) Limit state taxes to 8.3 percent of o modified acquisition value Proposal A (1981) Reduce state personal income local homestead and local system of determining tax- individual income taxes; in- able value (Would have re- Greater Tax Progressivity crease sales tax and reduce sulted in significant reduction in property taxes) Some proposals have attempted state income tax credits to alter the base or rate of state o Proposal B (1989) Reduce Three proposals, all initiated and taxes to move toward greater property taxes; increase all defeated, would have resulted progressivity in the tax system. state sales tax from 4 per- in significant tax reduction and, The only proposal to pass was an cent to 6 percent while tax increases would have initiated proposal: o Proposal A (1992) Modified been technically possible, adop- • Proposal C (1974) Eliminate acquisition value system for tion would have been seriously determining taxable value impeded: 3 for property tax Robert Tisch was a drain commis- o Proposal J (1978) Reduce sioner from Shiawassee County

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sales tax on food and pre- ation, and veterans, thereby re- Other Articles scription drugs moving them from legislative dis- Article II (Elections) has been cretion. The proposals and the amended once, a meaningless Three issues on the ballot, all funds they protected are: unsuccessful, proposed to re- attempt to limit the terms of • move the prohibition against the Proposal B (1984) Natural members of the Michigan Con- graduated income tax. One was Resources Trust Fund gressional delegation. This por- a legislative proposal: • Proposal P (1994) State tion of the term limits amendment Parks Endowment Fund has since been ruled unconstitu- o Proposal I (1968) tional by the U.S. Supreme Court • Proposal C (1996) Veterans’ in a 1995 Arkansas case: The two initiated proposals were: Trust Fund o Proposal D (1972) • Proposal 02-2 (2002) Recre- • Proposal B (1992) Limit o Proposal D (1976) ation Land Acquisition Fund terms of Michigan members of the U.S. House of Repre- • Proposal 06-1 (2006) Con- Tax Increase sentatives and U.S. Senate servation and Recreation and to provide incentives to One unsuccessful legislative pro- Legacy Fund; Non-Game incumbents to voluntarily posal was aimed primarily at rais- Fish and Wildlife Trust Fund; limit their terms if amending taxes: Game and Fish Protection ment ruled invalid o Proposal A (1989) Increase Trust Fund sales tax rate from 4 per- Two legislatively-proposed Two attempts to dedicate state cent to 4.5 percent; dedi- amendments to lower the mini- revenues have failed. The first cate the new revenues to mum voting age from 21 to 18 was a legislative proposal: local schools (1966, 1968) were rejected by o Proposal A (1974) Prohibit the voters.4 Revenue Dedication the use of motor fuel rev- Attempts to limit the budgetary enues for highway road pa- Article VI (Judicial Branch) has latitude of the legislature by controls; limit non-highway uses been amended three times by stitutionally restricting various to 1/18 of total revenues means of legislative proposals: revenue sources to certain pro- • Proposal 1 (1968) Establish The second was initiated: grams have met with marked suc- Judicial Tenure Commission cess. The successful proposals o Proposal 02-4 (2002) Real- • Proposal 3 (1968) Define have all been the result of legis- locate most tobacco settle- lative joint resolutions: manner of filling judicial ment revenues to organiza- vacancies • tions, both public and Proposal M (1978) Allocate at • Proposal B (1996) Estab- private, dealing with health least 90 percent of gasoline lish qualifications for judi- care tax revenues to road pur- cial offices poses, with the remainder Finance available for other purposes Article X (Property) has been One non-revenue related amend- amended once as the result of a Beginning in 1984 a series of five ment, a legislative proposal, was legislative proposal: amendments was initiated plac- adopted: ing a great deal of statutory lan- • Proposal 06-4 (2006) Re- • Proposal C (1978) Authorize guage in Article IX resulting in the the deposit of state funds in elevation to constitutional status savings and loan associa- 4 of a number of relatively minor These rejections became moot with tions and credit unions, in the adoption of the 26th Amendment funds related to natural re- addition to banks to the U. S. Constitution in 1971, sources, state parks and recre- which reduced the minimum voting age nationally to 18.

8 CRC Special Report on Michigan Constitutional Issues

Approval Rates by Decade

In the first three decades of the life of the 1963 Constitution, approximately one-third of the proposed amendments were adopted, whether proposed by joint resolution (34.4 percent) or initiative petition (33.3 percent). Since 1993, however, over three-quarters of the proposals have been adopted by the voters, with 100 percent of the legislative proposals adopted and 42.9 percent of the initiatives passing. All of the amendments proposed in 2004, 2006, and 2008 were adopted.

Table 2 Approval Rate by Decade (1964-2008) 1963 Michigan Constitution

Joint Resolutions Initiative Petitions Total Percent Percent Percent Decade Attempts Adopted Adopted Attempts Adopted Adopted Attempts Adopted Adopted 1964-1973 10 5 50.0 3 1 33.3 13 6 46.2 1974-1983 12 4 33.3 12 4 33.3 24 8 33.3 1984-1993 10 2 20.0 3 1 33.3 13 3 23.1 1994-2003 8 8 100.0 4 0 0.0 12 8 66.7 2004-2008 2 2 100.0 4 4 100.0 6 6 100.0

Total 42 21 50.0 26 10 38.5 68 31 45.6

Compared to amendment of the 1908 Constitution, amendment of the 1963 Constitution has been less frequent. In a 51-year period from 1910 to 1961, 126 amendments were proposed to the 1908 document, an average of about 25 per decade, with 69 approved, an average of about 14 per decade. In the 42 years between 1966 and 2008, about 17 amendments per decade have been proposed to the 1963 Constitution, with about eight being adopted.

As the 1963 Constitution has aged, the approval rate of proposed amendments has followed a pattern strikingly similar to that of the 1908 version.

Chart 1 Approval Rate by Decade (1910-2009)

100 1963 Constitution 90 80 70 60 1908 Constitution 50 40 30 (Percent Approved) (Percent 20 10 0 1910-1919 1920-1929 1930-1939 1940-1949 1950-1961 1964-1973 1974-1983 1984-1993 1994-2003 2004-2009

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strict the use of eminent sergeants the right to col- by means of initiative petition: domain lective bargaining and bind- • Proposal B (1992) Provide ing arbitration Article XI (Public Officers and for severability of any un- Employment) has been the tar- A similar proposal regarding clas- constitutional provisions of get of two initiated proposals, one sified state employees was re- the term limits amendment of which was successful: jected in 2002. No attempts have been made to • amend Article III (General Gov- Proposal G (1978) Grant Finally, Article XII (Amendment and Michigan state troopers and ernment) or, perhaps surprisingly, Revision) has been amended once Article VII (Local Government). Conclusions

A number of conclusions may be amendments are amendments create a “snowball effect.” Using drawn from a review of the ex- with essentially statutory lan- the example of the trust fund perience to date in amending the guage that have been placed in amendments to Article IX, the 1963 Michigan Constitution. the Constitution because the provisions are so detailed that amended provisions themselves they will likely require amend- Many of the amendments have were statutory in nature. An ment, thereby adding more statu- been essentially statutory provi- example is Proposal A of 1994, tory material and further exacer- sions placed into the Constitution. the aims of which could not have bating the problem. Indeed, Some provisions, such as term been accomplished statutorily Section 35, adopted in 1984 was limits, limitations on bail and trial under the existing language of amended in 1994 and 2002. Sec- by jury, and filling judicial vacan- Article IX, Section 6, which itself tion 35a, adopted in 1994, was cies, whether or not good public was already detailed and statu- amended in 2002, and Section 37, policy, probably fit with the na- tory in nature in that it limited adopted in 1996, was also ture of a basic document. Other the sales tax rate and dedicated amended in 2002. More statu- amendments, such as the mini- revenue to specific purposes. tory material will likely engender mum drinking age, the Headlee greater need for amendment, and Amendment and, in particular, the The most obvious example of so on. voluminous amendments to Ar- purely statutory language in the ticle IX relative to natural re- Constitution is found in Sections A common theme of amendment, source and veterans’ trust funds 35 and 35a and 37-42 of Article especially since 1992, has been are certainly statutory in nature, IX, placed in the Constitution in that of weakening the legislature. in the sense that the policies a series of five amendments, to- One method adopted for weak- embodied in the provisions could taling some 3,118 words (or ening the legislature in the Con- have been adopted statutorily, about nine percent of the Consti- stitution is that of simply remov- either by the legislature or by tution), from 1984 to 2006. ing from legislative purview means of the statutory initiative. These amendments lifted lan- certain subjects viewed as wor- The statutory initiative offers sub- guage directly from existing stat- thy of protection from alteration stantial protection against utes and placed it in the Consti- by statute. The trust fund amendment or repeal but has tution with the object of amendments to Article IX consti- been used sparingly. More fre- preventing the legislature from tute the wordiest example of this quent use could have relieved the using balances in various funds approach, but other examples Constitution of a large amount of for purposes other than those for include: Requiring voter approval detail and complexity. which they were created. of any expansion of gambling; specifying what can be recog- Between the purely constitu- Addition of essentially statutory nized as “marriage or similar tional and purely statutory material to the Constitution can union” for any purpose; restric-

10 CRC Special Report on Michigan Constitutional Issues tions on the use of eminent do- the result of legislative joint SOCC, for example. main; and specifying the mini- resolution. mum drinking age. The second period, from the These amendments, as restrictive mid-1970s to the mid-1990s, A variation on this approach is as they may be with respect to was dominated by proposed tax the extensive and complex set their specific subjects, do not and spending limitations, which, of limitations on taxing and strike at the heart of the legisla- although most were defeated by spending, ranging from the rev- tive process. The one amend- wide margins, framed the debate enue limit and state mandate ment that has done so is Proposal over the appropriate claim of funding requirement in the 1978 B of 1992, which instituted government on the economic re- Headlee Amendment to the tax- among the nation’s most restric- sources of the state for two de- able value limit and extraordinary tive set of term limits for elected cades. majority legislative voting re- state officials, particularly legis- quirement for exceeding statu- lators. Whether Proposal B was The third period, from the mid- torily determined millage limits intended by its framers to weaken 1990s to the present, has seen in Proposal A of 1994. Other the legislature may be debatable, the rise of proposals designed to restrictions adopted in this area but clearly a case can be made, advance various social agendas: have included eliminating the and has been, that such has been Restrictions on the expansion of sales tax on food and prescrip- its effect. gambling; limiting marriage to tion drugs and the requirement unions between one man and one that at least 90 percent of gaso- Amendment experience with the woman; banning certain affirma- line tax revenues be allocated to 1963 Constitution can be divided tive action programs, and, of general road purposes. And, it into three periods. At the risk of somewhat lesser moment, may be noted that the limits on oversimplification, the first period changing the word “handicapped” property taxation in the original began in 1966 and extended to to “disabled” in Article VIII. 1963 Constitution found their the mid-1970s. This period was way into the 1908 Constitution dominated by amendments hav- It is likely that future amend- by means of amendment. ing to do with the power and ments to the Michigan Constitu- structure of government—Judicial tion will continue to reflect the It should be noted that many of Tenure Commission; filling judi- concerns and fashions of the these restrictions came about as cial vacancies; trial by jury; and times in which they are adopted.

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No. 360-04 A publication of the Citizens Research Council of Michigan March 2010 Fourth in a series of papers about state constitutional issues ARTICLE I – DECLARATION OF RIGHTS

In Brief

The Citizens Research Council of Michigan takes no position on the question of calling a constitutional convention. It is hoped that examination of the matters identified in this paper will promote discussion of vital constitutional issues and assist citizens in deliberations on the question of calling a constitutional convention.

The powers of a state government are plenary, except to the extent they are constitutionally limited. The purpose of a bill of rights is to enumerate those basic individual liberties that the people intend to be secure from impairment by the actions of their government. Both the Constitution of the United States and the Michigan Constitution contain such enumerations. This analysis examines the dual role that a state bill of rights fulfills: according concurrent protection to individual liberties which also are protected under the federal Constitution and serving as an independent source for individual liberties which are not accorded recognition at the federal level. It also examines recent trends in amending Article I of the 1963 Michigan Constitution.

Introduction Article I of the Michigan Constitution entitled, “Dec- dom of religious worship, freedom of expression and laration of Rights,” sets forth basic individual liber- of the press, and both prohibit depriving a person of ties which are to be secure from impairment by the life, liberty, or property, without due process of law. actions of state government. Many of these indi- Given these similarities, the question may be asked vidual liberties are similar to those found in the fed- whether such an enumeration of rights in the Michi- eral Bill of Rights. For example, both the Michigan gan Constitution is needed, given that they also are Constitution and the federal Bill of Rights accord the protected under the federal Constitution. For sev- right to an equal protection of the laws and of the eral reasons, this question should be answered in people peaceably to assemble. Both recognize free- the affirmative.

The Case for a State Bill of Rights

Differences in Rights Protected despite occasional contentions to the contrary – but rather a right vested in the states to maintain militia. First, the notable similarities between the rights enu- The U.S. Supreme Court recently has interpreted the merated in the Michigan Constitution and those pro- Second Amendment as an individual’s right to bear tected by the Bill of Rights tend to obscure certain arms, but that case involved the District of Columbia, subtle but significant differences. For example, the which is a federal territory. The Court has not yet Second Amendment of the United States Constitu- applied that interpretation to the states. By contrast, tion historically has been interpreted to protect from the Michigan Constitution protects the right of indi- infringement not the individual right to bear arms –

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues viduals to bear arms for their own vidual liberties against impair- sequent U.S. Supreme Court de- defense as well as that of the ment by state action, it was cisions. state. thought that a citizen should look to the constitution of the state State Constitutional Provi- Similarly, while the Michigan Con- wherein he or she resided and not sions as Independent stitution prohibits punishment to the federal government. In- Source of Rights that is either cruel or unusual, the deed, it was not until 1925 that Eighth Amendment of the federal the U.S. Supreme Court held that Third, the final authority to inter- Constitution prohibits only pun- the Fourteenth Amendment of pret and fix the meaning of a ishment that is both cruel and the U.S. Constitution “incorpo- state constitution rests with the unusual. It was on the basis of rated” the Bill of Rights and made supreme court of each state. this difference that the Michigan those protections applicable to Thus, the supreme court of a Supreme Court in 1992 struck the states. state has the discretion, within down portions of a law requiring judicial boundaries, to interpret a sentence of life without possi- Although a majority of the U.S. that constitution in such a man- bility of parole upon conviction for Supreme Court has never sub- ner as to accord the citizens of specific drug offenses as violative scribed to the view that the Four- that state more rights than they of the state Constitution, even teenth Amendment incorporated enjoy under the U.S. Constitution. though the U.S. Supreme Court the entire Bill of Rights, in a se- For example, while the Michigan had earlier found no violation of ries of individual adjudications Supreme Court has consistently the Eighth Amendment. since 1925, the Court has applied held the scope of the equal pro- the bulk of the Bill of Rights – tection provision of the Michigan Basis for Application of Bill what Holmes called the “great Constitution to be coextensive of Rights to the States ordinances” of the Constitution – with the scope of the Equal Pro- to the states. However, because tection Clause of the U.S. Consti- Second, the federal Bill of Rights the application of the Bill of Rights tution, there is nothing in the U.S. was intended to serve as a limi- to the states relies less upon the Constitution which would bar the tation upon only the federal gov- text of the U.S. Constitution than Michigan Supreme Court from ernment. Thus, the First Amend- upon the federal courts’ reading expanding the orbit of the equal ment begins, “Congress shall of it, the scope of those protec- protection language of the Michi- make no law....” (Emphasis sup- tions could be diminished by sub- gan Constitution and of the rights plied.) For the protection of indi- protected thereunder.

Changes to Article I since Adoption of the 1963 Constitution

Since adoption of the current • Proposal A (1972) Trial by jury • Proposal B (1988) Rights for Constitution in 1963, seven of fewer than 12 jurors in victims of crimes amendments have been pro- misdemeanor cases • Proposal B (1994) Limiting posed to Article I and all seven • Proposal K (1978) Permit criminal appeals were successful. The first four, courts to deny bail under cer- proposed by the legislature, dealt tain circumstances in violent Three of these four constitutional with criminal procedure: crimes amendments amended existing

2 CRC Special Report on Michigan Constitutional Issues sections, Proposal B in 1988 • Proposal 04-2 (2004) Recog- tive action programs added section 24 to Article I. nizing only an agreement be- • Proposal 08-2 (2008) Legal- tween one man and one izing human embryonic stem The last three were placed on the woman as “a marriage or cell research ballot by initiative petition and similar union for any purpose” reflect the ideological struggles of • Proposal 06-2 (2006) Banning These amendments became sec- the last several years: certain governmental affirma- tions 25, 26 and 27 of Article I.

Constitutional Convention Issues

If the people of Michigan decide rial being enshrined in the Con- that the amendment prohibits to call a state constitutional constitution to protect against future public employers from providing vention, it is likely such a conven- changes. Despite the voters re- health-insurance benefits to their tion would be expected to ad- cently expressing their prefer- employees’ qualified same-sex dress several divisive issues ences on these questions, it is domestic partners. At the time concerning individual rights, is- possible that a constitutional con- of that ruling, it was expected that sues which were not controver- vention will be asked to revisit the decision would affect up to sial when the last state Constitu- some or all of these issues. 20 universities, community col- tional Convention was convened leges, school districts and govern- 47 years ago if, indeed, they were Same Sex Marriage ments in Michigan. issues at all. In 2004, Section 25 was amended Michigan is one of 27 states that to Article I providing that, “…the As was noted in CRC Report 313- currently have constitutional pro- union of one man and one 03, since the mid-1990s, provisions prohibiting same-sex mar- woman in marriage shall be the posed constitutional amendments riage and 41 states that have only agreement recognized as a have been designed to advance statutory prohibitions on same- marriage or similar union…” Un- various social agendas: Restric- sex marriages.2 like the other sections of Article I tions on the expansion of gam- that protect individual rights bling; limiting marriage to unions Affirmative Action against impairment by the actions between one man and one of state government, Section 25 In 2006, Section 26 was amended woman; banning certain affirma- prohibits actions that are viewed to Article I to ban affirmative active action programs, and, of by some as rights. The amend- tion programs that grant prefer- somewhat lesser moment, ment enshrined in the constitu- ential treatment to individuals or changing the word “handicapped” tion language that existed then, groups on the basis of race, sex, to “disabled” in Article VIII. and now, in statutory law. color, ethnicity, or national origin in public education, public em- Revisiting Recent Although the amendment ad- ployment, and government con- Amendments dresses only the definition of tracting. Over the years affirma- “marriage or similar union”, a tive action has evolved to The three most recent amend- Michigan Supreme Court ruling in comprise multiple meanings, in- ments to Article I – restrictions National Pride at Work Inc v Gov- cluding programs and processes on same sex marriage, banning ernor of Michigan1 (2008) found certain affirmative action programs, and authorizing human 2 embryo and embryonic stem cell Calif. gay marriage ruling sparks 1 coa.courts.mi.gov/documents/ new debate, Stateline.org, Pew research – remain controversial OPINIONS/FINAL/SCT/ Center on the States, topics. These three amendments 20080507_S133429_164_natlpride3Nov07- www.stateline.org/live/details/ are examples of statutory mate- op.pdf. story?contentId=310206.

3 CRC Special Report on Michigan Constitutional Issues to implement and ensure fair hir- asides, and have made it illegal Other Issues ing, testing, and admissions poli- to have an affirmative action pref- cies; outreach programs directed erence program without a com- It is possible that interest groups towards members of under-rep- pelling governmental interest. could bring other social/moral is- resented groups; programs that sues to a constitutional conven- give preferential treatment to Stem Cell Research tion, including abortion or the qualified individuals from under- In 2008, Section 27 was amended death penalty. represented groups; and outright to Article I to allow for research Abortion quotas to redress blatant discrimi- on human embryos in Michigan. nation by a certain entity or in a Regenerative medicine is a scien- The U.S. Supreme Court has held specific industry. tific and medical discipline that is that the U.S. Constitution con- focused on utilizing the body’s own tained an individual right to pri- The amendment to the Michigan regenerative capabilities to repair vacy. In 1973, the Court held that Constitution was introduced fol- or replace diseased or defective abortion was encompassed within lowing decisions in the U.S. Su- tissues and organs in the human that right. States were prohib- preme Court on two University of body and to find new therapies for ited from placing unreasonable Michigan cases, Grutter v. diseases and conditions that cur- restrictions upon access to abor- Bollinger et al. (2003) and Gratz rently have limited or no treatment tion, absent a compelling state et al. v. Bollinger et al. (2003), options. Prior to adoption of the interest. However, a number of which defined what is legal in re- amendment, Michigan was consid- issues remain. For example, al- gard to public university admis- ered to have some of the most though the U.S. Supreme Court sions policies. Those rulings said restrictive laws in the nation re- has held that the U.S. Constitu- that minority status can be specting human embryonic stem tion does not require that public viewed by university officials as cell research. It was illegal for monies be provided to fund abor- a single positive factor, among researchers to conduct research tions, a Michigan constitutional many, contributing to student- on human embryos, which prohib- convention might be asked to body diversity. Minority status ited researchers from creating new place language in the state Con- cannot be given a fixed number human embryonic stem cell lines stitution to require or to expressly of points or be used to meet any in the state. (The creation of new prohibit public funding of abor- sort of minority “quota” or “set- lines allows research to expand.) tion. Questions might also arise aside.” Although permissible un- Scientists were allowed to conduct concerning whether the Michigan der federal law, Section 26 made research using embryonic stem Constitution should address the clear that Michigan schools are cell lines created outside the state legislature’s authority to impose not to use minority status as a and to use adult stem cells. Even restrictions such as a waiting pe- positive factor contributing to after adoption of Section 27, re- riod prior to receiving an abor- school admissions. search on human embryos in tion or to require parental consent in the case of minors. At the state’s 15 public universi- Michigan is subject to federal regulations and is restricted to embryos ties, undergraduate admissions at Death Penalty the University of Michigan-Ann that were created for the purpose Arbor had to change the most to of fertility treatment, but are A constitutional convention may comply with Section 26. Also, scheduled to be discarded be- wish to revisit Michigan’s ban on graduate and professional pro- cause they were either 1) left over the death penalty as punishment grams across the state required after fertility treatment and no for certain heinous crimes. In changes in their admissions poli- longer needed by the donor or 2) 1846, Michigan abolished imposi- cies. With respect to state and unsuitable for implantation into a tion of the death penalty for all local government, recent U.S. woman’s uterus. Embryos must crimes but treason. Since Janu- Supreme Court decisions already be donated with the informed, ary 1, 1964, the death penalty has barred the use of quotas and set- written consent of the donors. been prohibited by the state Con- stitution. (The death penalty pro-

4 CRC Special Report on Michigan Constitutional Issues hibition is found in Section 46 of Inoperative Provision tence has been ruled invalid be- Article 4 of the Michigan Consti- cause it conflicts with the 4th tution, the “Legislative Branch” Section 11 provides protection Amendment to the U.S. Consti- Article, not the “Declaration of against unreasonable searches tution. In People v Pennington, Rights” Article.) Whether or not and seizures. The last sentence (383 Mich 611; 1970), the Michi- the death penalty prohibition of the section provides, “The pro- gan Supreme Court held that this should continue no doubt would visions of this section shall not be sentence, which allowed certain be an issue which a state consti- construed to bar from evidence evidence to be admitted into tutional convention would be in any criminal proceeding any criminal proceedings, violated the asked to consider. Thirty-five narcotic drug, firearm, bomb, federal exclusionary rule as enun- states presently authorize the explosive or any other dangerous ciated by the U.S. Supreme Court death penalty as punishment upon weapon, seized by a peace officer in Mapp v Ohio, (367 US 643; conviction for specific crimes.3 outside the curtilage of any dwell- 1961). ing house in this state.” This sen-

3 Death Penalty Information Center, www.deathpenaltyinfo.org/states- and-without-death-penalty.

Conclusion

Twenty-four of the 27 sections in level of crisis that would suggest research reflect the ideological Article I, the Declaration of immediate reform is necessary. struggles of the last several years. Rights, sets forth basic individual Supporters of the amendments liberties which are to be secure The final three sections in Article used amendments to the consti- from impairment by the actions I, which have been added since tution to make change more dif- of state government. Many of 2004, move beyond defining ba- ficult if the political winds shift in these individual liberties are simi- sic individual liberties to be pro- the future. Despite the voters lar to those found in the federal tected. The sections creating re- recently expressing their prefer- Bill of Rights. A constitutional strictions on same sex marriage, ences on these questions, it is convention may choose to revisit banning certain affirmative action possible that a constitutional con- the rights enumerated in Article programs, and authorizing human vention will be asked to revisit I, but no issues have risen to a embryo and embryonic stem cell some or all of these issues.

5 CRC Special Report Michigan Constitutional Issues

No. 360-05 A publication of the Citizens Research Council of Michigan April 2010 Fifth in a series of papers about state constitutional issues ARTICLE II - ELECTIONS

In Brief

Should a constitutional convention be convened, it would likely be called upon to amend or delete inoperative and obsolete provisions in Article II and to examine the article’s provisions related to direct democracy.

Introduction

Article II of the 1963 Michigan Constitution deals tions pertaining to direct democracy: recall, ini- with elections, and contains two original sec- tiative, and referendum. This article also estab- tions that are obsolete and one section added lishes, but does not define the role of, the State by initiative petition, the intent of which the Board of Canvassers, whose members have on United States Supreme Court has determined to several occasions challenged its traditional min- be unconstitutional. Article II also contains sec- isterial role.

Inoperative and Obsolete Provisions

State constitutions may not violate the provisions of Qualifications of Electors the United States Constitution. The language of a state constitution should reflect the reality of the Article II, Section 1 sets the minimum voting age in law and should be understandable to citizens. Pro- Michigan at 21 and creates residency requirements. visions of the state constitution that are inoperable In 1970, President Nixon signed an extension of the because they violate the provisions of the federal Voting Rights Act of 1965, setting a minimum voting constitution make the language of the state consti- age of 18 in all federal, state, and local elections. tution confusing and misleading. Inoperative provi- Oregon and Texas successfully challenged that part sions should be removed or revised to reflect the of the law; in Oregon v. Mitchell, 400 U.S. 112 (1970), current state of the law. a divided U.S. Supreme Court declared unconstitutional that section of the federal law that applied to Sections 1, 6, and 10 of Article II of the Michigan state and local elections. This raised the possibility Constitution are not consistent with the provisions that states that had established minimum voting ages of the federal constitution. other than 18 would have to maintain two sets of

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues voter registration records, one for ad valorem tax rate or bond is- fore unconstitutional.3 federal elections and one for state sues to be property owners. In and local elections. Kramer v. Union Free School Dis- Based on these and other cases, trict No.15, the U.S. Supreme it is clear that Article II, Section In 1971, the U.S. Congress pro- Court reversed a decision of a 6 would not be sustained were it posed, and three-fourths of the New York District Court. That to be challenged. Municipalities state legislatures ratified, the 26th court had dismissed a complaint no longer use property ownership Amendment of the United States by a bachelor who did not own as a criterion for participating in Constitution, establishing the na- or lease taxable real property, elections. tionwide minimum voting age to who challenged a state law that be 18: “The right of citizens of the provided that in certain school Federal Term Limits United States, who are eighteen districts, residents who were oth- years of age or older, to vote shall erwise eligible to vote could vote Article II, Section 10 seeks to not be denied or abridged by the only in school district elections if impose term limits on Michigan United States or by any State on they owned or leased taxable real members of the United States account of age.”1 That U.S. Con- estate or if they were parents or House of Representatives and stitutional amendment supersedes custodians of children enrolled in United States Senate. This sec- any state constitutional or statu- the local public schools. The U.S. tion, as well as additions to Ar- tory provision, including Article II, Supreme Court held that the rel- ticle V, Section 54 (term limits for Section 1 of the Michigan Consti- evant section of the New York law state legislators) and Article VI, tution. As a result, the minimum was unconstitutional because it Section 30 (term limits for state voting age in Michigan is 18, as violated the Equal Protection executive branch elected offi- provided in state law. Clause of the 14th Amendment.2 cials), were added to the 1963 constitution by initiated petition In addition, the Michigan Attor- In Cipriano v. City of Houma, the in 1992. The language clearly ney General has stated, based on U.S. Supreme Court found that a recognizes that the intent – plac- several United States Supreme Louisiana law that provided that ing term limits on U.S. senators Court cases, that the six-month only property taxpayers had the and members of congress – may residency requirement is no right to vote to approve the issu- be unconstitutional, and severs longer applicable. The current ance of revenue bonds for a mu- this provision from other parts of statutory requirement is 30 days. nicipal utility system violated the the initiative that impose limits on Equal Protection Clause of the state officers (which is not pro- Property Ownership 14th Amendment and was there- hibited by the U.S. Constitution). Requirement for Voting The 22nd Amendment to the U.S. Article II, Section 6 requires elec- Constitution limits the president tors voting on an increase in the

2 U.S. Supreme Court Center, U.S. 1 United States Government Print- Supreme Court Cases and Opin- 3 U.S. Supreme Court Center, U.S. ing Office, The Constitution of the ions, Volume 395, Kramer v. Union Supreme Court Cases and Opin- United States, www.gpoaccess.gov/ Free School District No.15 [395 ions, Volume 395, Cipriano v. City constitution/html/amdt26.html. U.S.621 (1969)]. of Houma [395 U.S. 701 (1969)]

2 CRC Special Report on Michigan Constitutional Issues to two terms, and 15 states in- tor who shall not have at- Senate, was in violation of the cluding Michigan have term lim- tained the age of thirty Federal Constitution.4 According its for state legislators (six years, and been nine years to the Michigan Legislature states have had legislative term a citizen of the United website, “The Supreme Court limits repealed or invalidated by States, and who shall not, held that: (1) states may not im- when elected, be an inhab- the courts). It is Article I, Sec- pose qualifications for offices of itant of the state for which tion 2 of the U.S. Constitution he shall be chosen. the United States representative that establishes the qualifica- or United States senator in additions for the U.S. House of Rep- In US Term Limits, Inc v Thornton tion to those set forth by the Con- resentatives: [514 US 779; 115 S Ct 1842; 131 stitution; (2) power to set addi- L Ed 2d 884 (1995)], the U.S. tional qualifications was not No person shall be a repre- Supreme Court ruled in a five to reserved to the states by the sentative who shall not have four decision that the U.S. Con- Tenth Amendment; and (3) state attained to the age of provision is unconstitutional when twenty five years, and been stitution prohibits states from it has likely effect of handicap- seven years a citizen of the adopting Congressional qualifica- United States, and who shall tions that are in addition to those ping a class of candidates and has not, when elected, be an enumerated in the Constitution. sole purpose of creating addi- inhabitant of the state in The case found that Amendment tional qualifications indirectly.”5 which he shall be chosen. 72 to the Arkansas Constitution, which prohibited an otherwise- Article I, Section 3 of the U.S. eligible candidate for Congress Constitution includes the mini- from being on the ballot if that 4 mum qualifications for the U.S. candidate had already served The OYEZ Project, U.S. Supreme Senate: three terms in the House of Rep- Court Media. resentatives and two terms in the 5 www.legislature.mi.gov No person shall be a sena-

Provisions Related to Direct Democracy

State Board of Canvassers constitute a quorum, and at least of State. one member of each party must • Canvassing state ballot pro- Created by the Michigan Consti- vote for an action to pass. posal petitions. tution of 1850 and continued in • Assigning ballot designations the 1908 Constitution and in Ar- According to its website, duties and adopting ballot language ticle II, Section 7 of the 1963 of the state Board of Canvassers, for statewide ballot proposals. Constitution, the state Board of which are statutorily determined, • Approving electronic voting Canvassers is mandated by the include the following: systems for use in the state. constitution and established in • statute. The constitution requires Canvassing (to canvass is to The controversy surrounding the that the board have four mem- examine or scrutinize) and Board of Canvassers relates to its bers and that a majority of board certifying statewide elections, function of certifying statewide members may not be from the elections for legislative dis- ballot proposals. Article II, Sec- same political party, but it does tricts that cross county lines, tion 9 provides for initiative and not clearly define the role of the and all judicial offices except referendum; Article XII, Section board. According to statute, the Judge of the Probate Court. 2 provides for amending the state • two Democrat and two Republi- Conducting recounts for state constitution. In both cases, peti- can members are nominated by offices. tions containing sufficient signa- • the political parties and appointed Canvassing nominating peti- tures must be filed with the Sec- by the Governor; three members tions filed with the Secretary retary of State’s Office in order

3 CRC Special Report on Michigan Constitutional Issues to place an issue on the ballot, authority. In 2002, the board did The Board of Canvassers’ author- and the Board of Canvassers is not certify two proposals which ity is ministerial: the board does authorized by law to certify those opponents claimed did not list all not have authority to disapprove petitions. of the constitutional provisions that a ballot proposal on the basis of would be affected. The Court of the content of the proposal or on The staff of the Bureau of Elec- Appeals later directed the board to complex legal analysis. Clarifica- tions, located in the Secretary of place one of those petitions, deal- tion of the extent of the board’s State’s Office, is available for con- ing with the distribution of tobacco authority could be addressed sultation on the design of an ini- settlement revenues, on the bal- statutorily. Elimination of the tiative petition format (the elec- lot. The Court agreed with the board would have to be accom- tion law is very specific in board that the other petition, deal- plished constitutionally. detailing the form and content of ing with the sentencing of drug statewide ballot proposals). The offenders, was insufficient (that Recall of Elected Officials Board of Canvassers may, but petition stated that it would add a need not, approve the language new section, Section 24, to Article Article II Section 8 provides for of a proposed petition. Approval 1 of the constitution, but Section the recall of elected officials other of a proposed ballot proposal by 24 already existed). The Court than judges of courts of record. the Board of Canvassers does not noted that the board has the re- Recall allows citizens to seek to imply endorsement of the pro- sponsibility to determine whether remove an elected official before posal, but only that the petition a petition’s form and wording are the end of that official’s term. meets the technical requirements correct, but that the board may not Recall is a political process, in of font size and form, so that the engage in complex legal analysis. contrast to impeachment, which petition cannot be challenged is a legal process for removing an later as to form. Rejection of a In 2005, the board bowed to po- elected official for violating a law. proposed petition does not pro- litical pressure when Democratic hibit signature collection, but members refused to certify bal- Recall was one of the Progressive does mean that the petitions lot initiative signatures and place Era initiatives to promote direct would be easier to challenge. the “Michigan Civil Rights Initia- democracy and make govern- tive,” a constitutional amendment ment more responsive and re- The Michigan Election Law speci- that banned certain affirmative sponsible, by giving citizens fies that the Board of Canvassers action programs on the Novem- power over unresponsive, incom- must ascertain if petitions have ber, 2006 ballot. The proposed petent, or otherwise unaccept- been signed by the requisite num- constitutional amendment, to ban able, (in Michigan, as in some ber of qualified and registered preferences in education, public other states, this includes politi- electors. The board also must employment, and public contract- cally unacceptable) elected offi- certify the language of the ballot ing, was opposed by a broad and cials. Michigan and Oregon were question and summary. The vocal coalition. The board’s re- the first states to allow recall of board may hold hearings, issue fusal was not predicated on a vio- state officials, in 1908. subpoenas, and administer oaths. lation of the form of the proposal The board is required to make an (the board had approved the pe- Michigan is one of 18 states that official declaration of the suffi- tition as to form in 2003) or the allow the recall of state officials, ciency or insufficiency of a peti- sufficiency of valid signatures, but and one of at least 36 states that tion at least two months prior to rather on allegations of misrep- allow the recall of local officials. the election. resentation of the content in the Michigan does not allow recall of process of obtaining signatures. judicial officers (there is divided A constitutional convention would The issue was placed on the bal- opinion on whether judicial offic- likely be asked to address ques- lot by order of the Michigan Court ers should be elected). Eight tions that have repeatedly arisen of Appeals and was approved by other states require specific about the extent of the board’s the voters. grounds for recall (malfeasance, conviction for a felony, misappro-

4 CRC Special Report on Michigan Constitutional Issues priation of public funds, etc.), but Signatures dated more than 90 on constitutional amendments, Michigan’s recall provisions are days before the petition is filed on petition of 20 percent of the more representative in acknowl- are invalid and are not counted. number that had voted in the pre- edging the political nature of re- Florida allows only 30 days to vious election, and with the ap- call efforts: “The sufficiency of collect signatures for recall of proval of the legislature voting in any statement of reasons or municipal or charter county offi- joint session) first appeared in the grounds...shall be a political cials; some states have no time 1908 constitution.8 rather than a judicial question.”6 limit for collecting signatures. The process of recall is specified Article II Section 9 of the 1963 in Michigan election law.7 Nationwide, recall efforts against Michigan Constitution authorizes state officials have generally been the use of initiative and referen- In Michigan, as in other states, unsuccessful, but two Michigan dum. A constitution convention the number of signatures re- state senators were successfully may consider whether Michigan quired on a recall petition is recalled in 1983. Attempts to should continue to permit use of higher than the number required recall local government officials these tools of direct democracy. for an initiative or referendum. are more frequent in Michigan. Michigan requires recall petitions Initiative Issues related to recall that a con- to have valid signatures number- The “initiative” is a proposal for stitutional convention would be ing at least 25 percent of the to- a new law (or a constitutional asked to address include the ef- tal number cast for governor in amendment, as provided in Ar- fect the possibility of recall may the last gubernatorial election in ticle XII, Section 2) that is placed have on elected officials faced with the electoral district of the officer on the ballot by a citizen petition. necessary, but politically unpopu- sought to be recalled. In other Michigan is one of 21 states that lar decisions. Policy questions in- states, the required minimum allow initiatives to propose stat- clude whether Michigan should number of signatures is based on utes, and one of 18 states that continue to allow recall, and if so, a variety of criteria: a proportion allow the initiative to propose under what conditions. Should of the number of inhabitants constitutional amendments. qualified to vote for a successor; recall be more, or less, difficult a proportion of the number of than now required (e.g. should the Michigan’s constitution provides votes cast for that position in the number of signatures required be for indirect initiative: once a suf- last election; a specific number increased or decreased, or should ficient number of valid signatures of qualified signatures; a propor- the reasons that justify recall ex- have been collected, the issue tion of all persons who voted in clude valid political positions)? goes to the legislature, and if the last election; a proportion of Should judges continue to be ex- approved by the legislature within the number of registered voters empt from recall? Should the me- 40 days, the proposal becomes at the time of the last election; chanics of the recall process be law without a vote of the people or a proportion of the total vote altered? or approval by the Governor. If for the candidate receiving the the legislature does not approve most votes at the last election. Initiative and Referendum the legislation, the proposal is submitted to the people. Michi- In the late 19th Century, U.S. ef- The period allowed to collect sig- gan is one of five states where forts to challenge the special in- natures in Michigan and four the legislature may place an al- other states is a 90-day window. terests that controlled the political process were informed by the Swiss, who had adopted direct democracy in the forms of refer- 6 National Council of State Legisla- endum in 1844 and initiative in 8 National Council of State Legisla- tures, Recall of State Officials, 1891. In Michigan, a limited and tures, Initiative and Referendum in March 21, 2006. restrictive form of initiative (only the 21st Century; Final Report of the 7 MCL 168.951-976. NCSL I&R Task Force, July 2002.

5 CRC Special Report on Michigan Constitutional Issues ternative proposition on the bal- one of 11 states that do not have • Amendment to prohibit the lot in addition to the initiative. this restriction. appropriation of public funds to pay for welfare abortions In the direct initiative process used A constitutional convention may unless the abortion is neces- in some other states, once a suf- revisit the process for putting ini- sary to save the live of the ficient number of valid signatures tiatives on the ballot. The Michi- mother, 1987 (no amendment has been collected, the issue is gan Constitution establishes a by legislature) placed directly on the ballot for minimum number of signatures • Amendment to require paren- determination by the voters. Two on petitions for initiatives equal tal consent for abortions per- states allow both direct and indi- to eight percent of the total votes formed on unemancipated mi- rect initiatives, 14 states allow di- cast for all candidates for gover- nors, 1990 (title and two rect initiatives for statutes, and five nor at the last gubernatorial elec- sections amended by legisla- (including Michigan) allow indirect tion (that number is currently ture) 9 initiatives. 304,101, according to the Secre- • Amendment to define legal tary of State). The required num- birth and the commencing of Purposes and Form. If the ini- ber of signatures must be col- legal personhood, 2004 (ruled tiative is retained, a constitutional lected within any 180 day period, unconstitutional in federal convention may wish to insert according to Michigan statute. Of court) language clarifying how the ini- the 21 states that allow the statu- • Amendment to repeal Public tiative may be used. Some states tory initiative, Massachusetts re- Act 228 of 1975, the single that allow the initiative restrict the quires the fewest signatures business tax, 2006 (no purposes for which it can be used. (three percent of votes cast for amendment by legislature)10 Initiatives that modify the rights governor in the last election) and of individuals; that affect the ju- allows the shortest time for gath- Of the 13 initiated legislative pro- diciary or prescribe court rules; ering signatures (60 days). A posals that did appear on the that amend the state constitution; few states require a number of ballot, seven were approved by that enact emergency measures; signatures equal to as much as the voters and six were rejected. that propose local or special leg- ten percent of the votes cast in The seven approved initiatives, islation; or that make appropria- last general election; some states and subsequent actions on those tions, may be prohibited. Some allow an unlimited amount of time statutes, are as follows: states prohibit the same measure to collect signatures. Michigan is being set before the voters more one of nine states that do not • Repeal Public Act 6 of 1967, often than once in three years. require a geographical distribu- to permit the establishment In Michigan, the initiative extends tion for petition signatures. Other of daylight savings time, 1972 only to laws that the legislature states require minimum percent- • New act to prohibit the use of may enact (the initiative may not ages of signatures to be from dif- nonreturnable beverage con- be used, for example, to reestab- ferent regions as defined by coun- tainers; to require refundable lish a minimum voting age of 21). ties or congressional districts. cash deposits for returnable containers; and to provide pen- Some states restrict statutory ini- Initiatives in Michigan. In alties for violation of the law, tiatives to a single subject, which Michigan since 1963, 17 initiatives 1976 (legislature amended title advocates claim enhances clarity proposing statutes have been and three sections and added and transparency. Michigan is certified. The Michigan Legisla- eight sections) ture approved four of these within the 40-day period allowed; those four proposals became law by 9 Steven L. Piott, University of Mis- legislative action and did not ap- souri Press, Giving Voters a Voice: 10 Michigan Secretary of State, Bu- pear on the ballot. Origins of the Initiative and Refer- reau of Elections website: endum in America, 2003. www.Michigan.gov/sos.

6 CRC Special Report on Michigan Constitutional Issues

• Amendment to revise stan- A law submitted by initiative and Besides considering continuation dards for grant of parole and approved by the voters takes ef- of the power of referendum, a to prohibit grant of parole for fect ten days after the vote is constitutional convention may certain defined crimes until certified. After an initiative peti- wish to revisit the process of ini- court imposed minimum sen- tion is approved by the voters, no tiating the referendum. Citizen tence is served, 1978 (one gubernatorial approval is neces- initiated referenda in Michigan section amended by legisla- sary, nor may the governor veto require a number of valid signature, one section repealed) the proposal. In Michigan, a tures equal to five percent of the • Amendment to prohibit util- three-quarters vote of the House total vote cast for governor in the ity increases without full no- and Senate is required to amend last gubernatorial election (the tice opportunity for hearing; or repeal an initiated statute (all Secretary of State’s Office indi- to abolish all rate adjustment of the amendments noted above cates this number is currently clauses; and to prohibit the in the list of initiated statutes re- 190,063). The petition may be public service commission quired this supermajority ap- circulated from the date the law from conducting two or more proval). Of the seven voter-ap- being challenged is enacted until proceedings on the same pe- proved initiated statutes, one had the filing deadline, which is 90 tition or application for rate no real effect (the call for a days after the final adjournment increase and from conducting nuclear weapons freeze); two of that legislative session. hearing on additional rate in- have not been amended (one was crease petition or application a repeal, leaving nothing to If the referendum petition is cer- when utility already has a amend); and four have been tified by the Board of Canvassers petition or application pend- amended (one extensively). as having sufficient signatures, ing, 1982 (one section the implementation of the law amended by legislature) Ten states restrict the legislature’s that is being contested is sus- • New legislation calling for power to repeal or amend an ini- pended, pending the determina- mutual, verifiable nuclear tiated statute; the California leg- tion by the voters. weapons freeze between the islature is prohibited from amend- Referenda cannot be used to re- United States and the Union ing or repealing an initiated scind acts that make appropria- of Soviet Socialist Republics statute. In 14 states, the legisla- tions or to meet deficiencies in and requiring transmission ture may repeal or amend an ini- state funds. This provision has of communication to United tiated statute at any time. led the legislature to include an States government officials, Referendum appropriation in controversial leg- 1982 (no amendment by islation to make the act referen- legislature) A popular “referendum” is a pro- dum proof. Because this provi- • New legislation to permit ca- posal placed on the ballot by a sion is in the constitution, any sino gaming in qualified cities, citizen petition to repeal a law limitation that would prevent 1996 (most of 36 sections have that has been enacted by the abuse of the provision by the leg- been amended by legislature) legislature and signed by the islature would have to be included • governor. Like the initiative, New legislation to permit the in the constitution. use and cultivation of mari- adoption of the referendum was juana for specified medical a Progressive Era response to the Although the signature require- conditions, 2008 (no amend- control of state legislatures by ment is less, referenda occur less ment by legislature)11 special interests. Michigan is one frequently than initiatives. Since of 24 states that permit citizen 1963 in Michigan, only seven ref- initiated referenda. (Legislative erenda have been placed on the referenda, also called legislative ballot by petition, and of those, 11 Michigan Secretary of State, Bu- propositions or legislative mea- only one was approved. That reau of Elections website: sures, are placed on the ballot November, 1988 referendum tar- www.Michigan.gov/sos. by the legislature.)

7 CRC Special Report on Michigan Constitutional Issues

Laws Subjected to Referendum by Petition Under the 1963 Michigan Constitution

Referendum Election called on Purpose of Bill Date Outcome Act 240 of 1964 To institute use of Massachusetts ballot in Nov. 1964 Rejected Michigan to prevent straight party ticket voting

Act 6 of 1967 To permit establishment of daylight saving time Nov. 1968 Rejected

Act 59 of 1987 To prohibit use of public funds for the abortion Nov. 1988 Adopted of a recipient of welfare benefits unless the abortion is necessary to save the life of the mother

Act 143 of 1993 To reduce auto insurance rates; place limits on Nov. 1994 Rejected personal injury benefits, fees paid to health care providers, and right to sue; and allow rate reduction for accident-free driving

Act 118 of 1994 To amend certain sections of Michigan Bingo Act Nov. 1996 Rejected

Act 269 of 2001 To amend certain sections of Michigan election law Nov. 2002 Rejected

Act 160 of 2004 To allow hunting season for mourning doves Nov. 2006 Rejected

Source: Michigan Manual 2009-2010, Michigan Legislative Service Bureau.

geted PA 59 of 1987, to prohibit on the right of citizens to directly There are concerns about “out- the appropriation of public funds participate in the process of pass- siders” and special interests fund- to pay for welfare abortions un- ing and repealing laws. Concerns ing initiatives. “To supporters, less the abortion is necessary to arise about the effect of direct initiatives and referendums are a save the life of the mother. In democracy on government when legitimate and often effective way addition to the seven petition ref- issues are placed directly before to bring unresponsive or erenda, 13 referenda were placed the voters, without the benefit of gridlocked government actions on the ballot by the legislature, a legislative balancing of compet- closer to majority preferences and and nine of those were approved ing policy needs; on the ease or empower citizens… Critics charge by the voters.12 Laws approved difficulty of placing an issue on that initiatives and referendums by referenda may be amended by the ballot; on the often confus- unwisely elevate the influence of the legislature at any time. ing language that makes it diffi- narrow interests, erode represen- cult for voters and public officials tative government…”13 Initiative and to interpret and predict the ac- Referendum Policy tual effect of proposals; and on The controversy surrounding the instances of alleged fraud in gath- ering signatures. The 1996 ca- initiative and referendum centers 13 sino initiative exemplifies another Phyllis Meyers, Initiative and Referendum Institute, University of concern: The language of that Southern California, Direct Democ- proposal required extensive racy and Land Use: Eminent Do- 12 Bureau of Elections website, amendment to allow implemen- main and Big Box Development at www.Michigan.gov/sos. tation of the voter-approved law. the Local Ballot Box, 2007.

8 CRC Special Report on Michigan Constitutional Issues

Conclusion

Section 1 of Article II of the 1963 Sections 7, 8, and 9, which al- Recall, initiative, and referendum Michigan Constitution should be low citizens to exercise direct de- were adopted as means to em- updated to make it conform to the mocracy through recall, initia- power citizens to challenge the U.S. Constitution’s minimum vot- tive, and referendum, are the perceived control of special inter- ing age. Based on various U.S. more interesting policy issues. ests over the state legislature. Supreme Court decisions, it is clear Not all states provide for direct Ironically, in recent times, these that Section 6 would also be de- democracy in this way, and ques- tools of direct democracy have, clared unconstitutional if chal- tions arise concerning the effect on occasion, been used by spe- lenged. Section 10 should be these citizen rights have on the cial interests to achieve their eliminated because it seeks to es- adoption of considered, balanced goals. While these processes tablish congressional term limits, legislation. A further question, exclude the checks and balances, a goal that the U.S. Supreme Court in the context of a constitutional the debate, deliberation, and has found to be unconstitutional. convention, is whether, and compromise that characterize All of these changes could be ac- which, aspects of these issues representative democracy, they complished by amendment or as should be addressed constitu- do engage citizens in discussions part of a general revision. tionally or statutorily. and determinations of important public policy issues.

9 CRC Special Report Michigan Constitutional Issues

No. 360-06 A publication of the Citizens Research Council of Michigan April 2010 Sixth in a series of papers about state constitutional issues ARTICLE III - GENERAL GOVERNMENT

In Brief

At the November 2, 2010 general election, the voters of Michigan will decide whether to call a constitutional convention to revise the 1963 Michigan Constitution. The state Constitution itself requires that the question of calling a constitutional convention appears on the statewide ballot every 16 years. If the proposal is approved, the convention would convene in Lansing on October 4, 2011. If the proposal is not approved, the question will automatically appear again on the ballot in 2026.

The Citizens Research Council of Michigan takes no position on the calling of a constitutional convention. It is hoped that examination of the matters identified in the series of publications, of which this report is a part, will promote a discussion of vital constitutional issues and assist citizens in deliberations on the question of calling a constitutional convention.

Should a constitutional convention be convened, it would examine the provisions of Article III, General Government. Among the eight sections in Article III are two that are of special interest from a public policy perspective (and one of those only because of the use of the word “militia,” the popular association of which has changed over time).

Introduction

Article III of the current Michigan Constitution con- legislative, executive, and judicial branches, pat- tains provisions relating to the general structure terned on the federal model (Section 2). Section of the state government. In Section 1, Lansing is 7 provides that laws in force at the time of adop- designated as the state capital (in 1847, the state tion of the constitution, and not contradicted by legislature determined that Detroit’s location on the constitution, remain in force. The governor the border made it vulnerable to invasion by Brit- and legislature are authorized to ask the opinion ish forces in Canada and relocated the capital to of the state supreme court on important questions Lansing). The state government is organized into of law (Section 8).

Constitutional Convention Issues If the people of Michigan decide to call a state con- members. Rather, the militia referred to in Section stitutional convention, it is likely such a convention 4, now known as the Michigan National Guard, has a would take a closer look at three sections of Article history that predates Michigan statehood. This his- III. tory is recounted in detail on the website of the Michi- gan Department of Military and Veterans Affairs.1 Michigan’s Militia In the early days of settlement, the militia fought in Section 4 provides that “The militia shall be orga- the War of 1812, the Black Hawk War, and border nized, equipped and disciplined as provided by law.” The militia referred to in Section 4 should not be confused with the Michigan Militia, a volunteer or- 1 www.michigan.gov/dmva/0,1607,7-126-2364— ganization which at one time claimed over 10,000 ,00.html

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues disputes (the “Toledo War” and gan National Guard as this state’s game, and harbor development the “Patriot War”). The First militia. and regulation. The authority Michigan Volunteers served in the provided by Section 5 is far nar- Mexican War in 1847-1848; sev- Intergovernmental rower than is provided by Article eral Michigan regiments served in Agreements VII, Section 28 and there are far the Civil War. In 1870, the militia fewer examples to illustrate its became the “Michigan State Section 5 allows the state and usefulness. Section 5 allows com- Troops,” and in 1891, the name local governments to enter into munities along Michigan’s borders was changed to the “Michigan agreements with other states, the with Ohio, Indiana, and Wiscon- National Guard.” Michigan Na- United States, Canada, or their sin to cooperate with communi- tional Guard units have been political subdivisions, for the per- ties in those states. It also allows mobilized and fought in the Span- formance, financing, or execution for cooperation with Canadian ish American War, World War I, of their functions, subject to other communities, most notably at the World War II, the Korean Conflict, provisions of the constitution and bridges between Detroit and and the Persian Golf Conflict. general law. This authority for Windsor, Port Huron and Sarnia, Currently, members of the Michi- cooperation with governments and the cities of Sault Ste. Marie gan National Guard are deployed outside of Michigan is related to in Michigan and Ontario. It allows in Kuwait, Iraq, Afghanistan, and other constitutional provisions municipalities and the state to the United Arab Emirates. that provide for local government participate in cooperative bodies cooperation (Article VII, Section such as the Great Lakes Commis- The Michigan National Guard in- 28) and that allow the establish- sion, which deals with Great cludes both Army and Air Guard ment of multi-purpose authorities Lakes watershed issues. components. These units can in metropolitan areas (Article VII, be called into action by the Gov- Section 27).2 Internal Improvements ernor to assist in the event of local emergencies or civil distur- Section 5 was a new section to Section 6 prohibits the state from bances, or by the President to the Michigan Constitution when participating in internal improve- serve with active duty troops in it was added in 1963. The fram- ments, except as provided by law. foreign wars or national emergen- ers of the Constitution envisioned “Internal improvements” are now cies. Reflecting the dual mission a need for such provisions to deal known as public infrastructure, of all states’ Guard units, the with matters such as flood con- especially infrastructure that is Michigan National Guard has trol, navigation, water conserva- developed for the benefit of pri- been deployed to keep the peace tion, protection of wildlife and vate investors. and to provide security both within the state and across the The debate about the proper role world. of government in the building of roads, canals, harbors, and rail- 2 All states are required by federal These issues are explored in great roads dates to the 19th Century. detail in CRC Report 346, Authori- law to maintain a militia, but a Prior to the Civil War, strict con- zation for Interlocal Agreements and structionists and defenders of constitutional convention could Intergovernmental Cooperation in clarify the language of Article III, Michigan, www.crcmich.org/ states’ rights objected to federal Section 4 to identify the Michi- PUBLICAT/2000s/2008/rpt354.html. investment in internal improve-

2 CRC Special Report on Michigan Constitutional Issues ments. Both the federal and state ways.3 amended in 1945 and 1946 to governments provided subsidies include a number of exceptions, for the construction of internal The 1835 constitution encour- including development, improve- improvements, most of which aged internal improvement and ment and control of public roads, were also privately funded and directed the legislature to develop harbors of refuge, waterways, expected to generate returns for infrastructure goals and provide airways, airports, landing fields the private investors. Many states funds to meet those goals.4 In and aeronautical facilities; the had provided state funds for the contrast, the 1850 constitution development, improvement and construction of privately owned forbade the state from becoming control of rivers, streams, lakes infrastructure, or had incurred “a party to, or interested in any and water levels, for purposes of considerable debt in constructing work of internal improvement, drainage, public health, control of toll roads, canals, and railroads. nor engaged in carrying on any flood waters and soil erosion; re- Governmental involvement was such work, except in the expen- forestation and protection and justified in order to facilitate diture of grants to the state of improvement of lands. trade, transportation, national lands or other property.”5 defense, national unity, and eco- The current, 1963 state constitu- nomic prosperity. Unfortunately, The constitution of 1908 stated tion states that “The state shall many of these projects were char- that “The state shall not be a not be a party to, nor be finan- acterized by corruption and party to, nor be interested in any cially interested in, any work of ended in financial catastrophe; a work of internal improvement, internal improvements, nor en- number of states had trouble re- nor engage in carrying on any gage in carrying on any such paying debts incurred for inter- such work, except in the improve- work, except for public internal nal improvements. In response ment of, or aiding in the improve- improvements provided by law.” to those experiences, many ment of the public wagon roads, states amended their constitu- in the reforestation and protec- Michigan funds and participates tions to prevent investment in tion of lands owned by the state in roads, ports, airports, housing, internal improvements. Gener- and in the expenditure of grants broadband, and other improve- ally, if there is no essential gov- to the state of land or other prop- ments that are specifically autho- 6 ernmental purpose for a capital erty. That language was rized in state statute. The tradi- project, these constitutional pro- tional way that states have visions apply. circumvented internal improvements clauses has been to cre- Michigan continues to be one of 3 This history is explained in A ate dummy corporations or inde- many states with constitutions Comparative Analysis of the pendent public bodies to that include an internal improve- Michigan Constitution, a Citizens administer funds for private ments clause, which limits the Research Council analysis of state projects. state’s ability to engage in capi- constitutional provisions written tal projects. Judicial interpreta- in 1961, to assist the constitu- The state’s capital outlay process tions of states’ internal improve- tional convention that developed controls the planning and financ- ments clauses are based on the 1963 Constitution. ing of acquisition, construction, “essential” government purposes, www.crcmich.org/PUBLICAT/ renovation, and maintenance of “predominantly” governmental 1960s/1961/rpt208.pdf facilities used by a state agency, purposes, or other defining terms. public university, or community 4 1835 Constitution, Article XII, college. Nearly all major state Section 3 The 1835, 1850, 1908, and 1963 owned facility renovations and Michigan Constitutions all ad- 5 1850 Constitution, Article XIV, new construction are financed by dressed the issue of internal im- Section 9 the State Building Authority (SBA) from bond proceeds. SBA bonds provements, but in very different 6 1908 Constitution, Article X, are limited obligations of the SBA, Section 14

3 CRC Special Report on Michigan Constitutional Issues payable from the annual SBA rent the law to be constitutional, and housing is not a public work payment in a state budget bill, stated that: of internal improvement, and are not general obligations the act does not make the of the state. Highway and bridge • The State may not directly State a party to, financially construction projects are covered engage in the financing or interested in, or engaged in carrying on such work, and by other administrative and leg- construction of private the act does not therefore islative procedures.7 housing. • offend against Constitution The encouragement of hous- 1963, Article 3, Section 6. In order to support the developing construction is a proper ment of housing for low and mod- public purpose for the cre- As a constitutional policy issue, erate income residents, and still ation of a State agency. restrictions on the state’s involve- accommodate the internal im- • The funds of the State hous- ment in internal improvements, provements clause, the State of ing development authority are designed to promote the wise use Michigan created the Michigan not State funds. of state resources, must be State Housing Development Au- • The bonds of the State hous- weighed against the necessity to thority, which sells bonds and ing development authority are ensure that the residents of this channels federal grants to fund not obligations of the State. state have the infrastructure nec- that development. • An appropriation to the State essary to compete successfully in housing development author- the 21st Century economy. Con- Then-Governor George Romney ity for the purpose of admin- sideration should include the gov- requested an advisory opinion istration is a proper public ernmental interest in reducing from the state Supreme Court as function. unemployment; building healthy to the constitutionality of the law • An appropriation to the hous- neighborhoods; promoting manu- that created the Michigan State ing development fund, or the facturing, tourism, or agriculture; Housing Development Authority capital reserve fund of the and making technology more (MSHDA) in 1966. Advisory Opin- State housing development widely available. Further, consid- ion re Constitutionality of PA authority is not a proper pub- eration should recognize develop- 1966, No 346 addresses three lic purpose. ments in the investment environ- constitutional provisions: the in- ment and in the use of public- ternal improvements clause, the As to the internal improvements private partnerships to develop, prohibition on the lending of state clause: maintain, and operate infrastruc- credit (Article IX, Section 18), and ture. While the exception pro- the requirement of the approval Moneys of the State hous- vided (“except for public internal of two-thirds of the members ing development authority improvements provided by law”) serving in each house of the leg- are not moneys of the State. allows projects that receive leg- The funds to be established islature for the appropriation of islative approval, the constitu- public money or property for lo- under the act are trust funds to be administered by the tional convention may wish to cal or private purposes (Article IV, review the internal improvements Section 30). The opinion ruled State housing development authority. The State has no clause to determine whether the beneficial interest in such conditions that justified the pro- funds, and when such funds hibition are still persuasive, and are used to finance the con- whether there are better ap- struction of housing, the proaches to protect taxpayers State cannot be said to be and ensure provision of modern financially interested in such infrastructure (e.g. high speed construction. We conclude, 7 Internet connections) that is nec- Al Valenzio, House Fiscal Agency, therefore, that while the Michigan’s Capital Outlay Process, construction of private essary to economic competitive- March 2007. www.house.mi.gov/ ness and prosperity. hfa/PDFs/capoutl.pdf

4 CRC Special Report Michigan Constitutional Issues

No. 360-07 A publication of the Citizens Research Council of Michigan May 2010 Seventh in a series of papers about state constitutional issues ARTICLE IV – LEGISLATIVE BRANCH

In Brief

State government powers are expansive and shared among three branches of government: legislative, executive, judicial. The lawmaking powers reside with the Michigan Legislature, which consists of a senate and a house of representatives. Should voters approve the calling of a constitutional convention, it is likely that delegates to the convention would examine a number of provisions contained in Article IV entitled, “Legislative Branch”, dealing with: obsolete provisions and institutional matters; the legislative structure; term limitations; setting elected officials’ compensation; and other issues. The legislature’s role in the state’s financial affairs as described outside of Article IV (e.g., “power of the purse” in Article IX and “balanced budget” in Article V) will be covered separately in forthcoming analyses.

Introduction

Article IV, Section 1 succinctly states that legislative of legislative authority. Article IV, however, does power “is vested in a senate and a house of repre- contain provisions that define legislative powers, in sentatives.” Absent further refinement of such pow- addition to provisions that involve the legislative in- ers, such authority would be sufficient to allow the stitution itself; its structure, organization, and pro- legislature to carry out all acts that are embraced cedures. This article also contains provisions gov- within the concept of the general powers of govern- erning the legislative redistricting process, which have ment. Unlike the executive and judicial branches of been deemed to be unconstitutional by the Michi- state government that exercise powers specifically gan Supreme Court, that should be eliminated and enumerated to them, the Michigan Constitution, in replaced with valid language. theory, does not need to define the specific grants

Obsolete Provisions States have considerable discretion in drafting the the language of a state constitution confusing and fundamental law that govern their operations and misleading to the citizenry. These provisions should that afford rights to their citizens. State constitu- be removed or revised to reflect the current status tions, however, are bound by the parameters of the of law. United States Constitution and may not violate the provisions contained in that document. State con- Article IV contains provisions relating to legislative stitutional provisions that are obsolete because they redistricting that are not consistent with the federal violate the provisions of the federal constitution make constitution. Given the importance of redistricting

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues to the electoral process and to deficient in three respects: 1) it drafted at the same time prece- ensuring representative democ- does not specify what body, dent-setting legal cases were be- racy, the existing language that agency, or official is responsible ing decided by the U.S. Supreme details the process of redistrict- for the process; 2) it does not list Court establishing standards that ing and the body responsible for the state-specific standards that states are required to follow in the this process should be eliminated govern the process; and 3) it does redistricting process, namely the and replaced with wording that not indicate how often the pro- “one person, one vote” principle. complies with the United States cess is to take place. Despite the The 1963 Constitution was crafted Constitution. fact that Michigan has been with- and took effect before federal le- out valid redistricting provisions gal precedent on the matter was Legislative Redistricting for the past 30 years, neither the settled and requires legislative dis- legislature, nor the voters through tricts to be crafted on a combina- Legislative redistricting is the pro- their power to propose constitution of factors, including popula- cess by which a state is divided tional amendments, has chosen tion and land area. In 1962, the into geographic districts from to address the issue. U.S. Supreme Court set the stage which voters elect state senators for future review of state legisla- and state representatives. With Background tive redistricting standards when respect to legislative redistricting, Michigan’s current constitutional it found that the matter was sub- the 1963 Michigan Constitution is redistricting provisions were ject to judicial review and that it

“Apportionment” or “Redistricting”? These two terms are often used interchangeably; however, doing so can lead to confusion. The terms have distinct definitions, depending on the context in which they are being discussed, e.g., state legislative bodies or the U.S. Congress. “Apportionment” is the process of determining the number of representatives to which each state is entitled in the U.S. House of Representatives. Each state is guaranteed at least one representative. The process of dividing the remaining seats in the U.S. House among the various states following each decennial U.S. census is called “reapportionment”. (Seats in the U.S. Senate are not apportioned among the states because each state is assigned two seats in that chamber, regardless of population.) Once each state’s allocation of U.S. House seats is determined, geographic boundaries for each congressional district are established, a process called “redistricting”. States carry out the redistricting process for seats in the U.S. House. In the federal vernacular, “apportionment” and “redistricting” have separate meanings.

With respect to legislative bodies at the sub-federal government level, the term “apportionment” has little relevancy in light of U.S. Supreme Court rulings requiring the distribution of political power on the basis of “one person, one vote”. Because the Michigan Constitution was drafted before resolution of these federal court cases, the original language refers to “apportionment” because legislative seats were “apportioned” to areas of the state based on land and population factors. Today, political power is required to be distributed primarily on the basis of population. Thus, the appropriate term to be used in state constitutions, including Michigan’s, with respect to distributing the power of legislative bodies is “redistricting”. As is the case at the federal level, this is a process of determining the geographical boundaries of individual legislative districts following each U.S. census.

2 CRC Special Report on Michigan Constitutional Issues was not solely the province of the this fundamental and recurring tricting process was clearly de- political process in the states.1 By governmental function, responsi- fined in law. June of 1964, the U.S. Supreme bility for redistricting has fallen to Court had rendered a decision that the judicial branch of government. Current Redistricting Guidelines both houses of a bicameral state Since the U.S. Supreme Court’s The Michigan Supreme Court drew legislature must be divided up sub- precedent-setting rulings in the 2 up legislative districts following the stantially on a population basis. mid 1960s requiring state legis- 1970, 1980, and 1990 U.S. cen- In light of the federal court action, latures to redistrict on a popula- suses. The Commission on Legis- the Michigan Supreme Court tion basis, the Court has permit- lative Apportionment initiated the deemed the constitutional provi- ted some deviation from strict redistricting process following the sions related to the method of re- adherence to a population-only 1970 and 1980 censuses, but was districting in Michigan (e.g., popu- standard. Acknowledging the dif- unable to agree to a final plan and lation and land area) to be in ficulties associated with pure thus the courts finalized a plan.5 violation of the Equal Protection mathematical equality in redis- Following the 1990 census, the Clause of the Fourteenth Amend- tricting, the Court has allowed the 3 Michigan Legislature failed to ment to the U.S. Constitution. use of other factors to effect ra- adopt a redistricting plan and the tional state policy.7 Both the Responsibility final plan was developed by the Michigan Supreme Court and the Supreme Court. Absent clear lines of constitutional Michigan Legislature, in establish- responsibility to the contrary, re- The “void” of constitutional re- ing the statutory provisions in PA districting is a function to be dis- sponsibility and standards was 463, have relied upon the follow- charged by state legislative bod- filled in 1996 by way of Public Act ing standards to guide the redis- ies. The Michigan Constitution 463, which directed the Michigan tricting process in Michigan: (Article IV, Section 6) entrusted Legislature to develop a redistrict- 1. Contiguity – the ability to this responsibility to an indepen- ing plan following each census, move to any location within a dent body (Commission on Legis- beginning in 2000, and prescribed district without leaving it. lative Apportionment); however, the specific guidelines to use, 2. Compactness – districts this body was declared unconsti- while adhering to federal law. should be as square in shape tutional in 1982 by the Michigan The state law further directed as practicable. Supreme Court, largely on the rea- that the Supreme Court “shall soning that the body did not have have original and exclusive state 3. Adherence to local bound- valid criteria to guide its actions jurisdiction to hear and decide all aries - districts should follow following the Court’s finding that cases or controversies” involving existing political and geo- apportionment provisions of the redistricting plans developed by graphical boundaries, or re- state constitution violated the fed- the legislature.6 PA 463 marked spect identified communities 4 eral Equal Protection Clause. the first time following the Su- of interest. Since that time, the Michigan Leg- preme Court’s 1982 ruling invali- Public Act 116 of 2001 established islature has attempted to carry out dating the role of the Commis- the current senate and house dis- the redistricting process. In years sion on Legislative Apportionment tricts using PA 463 guidelines, in which an independent body or that responsibility for the redis- the legislative body failed to fulfill and have been in effect since the August 2002 primary election.

1 Baker v Carr (369 US 186; 1962) 4 In re Apportionment of State Leg- 2 Reynolds v Sims (377 US 533; islature – 1972 (387 Mich 442; 1964) 1972). In re Apportionment of State Legislature – 1982. 3 In re Apportionment of State Leg- 6 Mahan v Howell (410 US 315; islature – 1982 (413 Mich 96; 1982) 5 1996 PA 463, MCL 4.262. 1973)

3 CRC Special Report on Michigan Constitutional Issues

Constitutional Convention Issues any other state, grants this re- based on a lack of standards for sponsibility to nonpartisan legis- ruling on the matter.8 Each of the four state constitu- lative staff. Despite the strong tions that have been adopted by prevalence of independent bod- When Should Redistricting Oc- Michigan voters since 1835 has ies in other states, as evidenced cur? Current statutory guidelines contained specific legislative re- by Michigan’s experience, having covering the legislative redistrict- districting provisions. This fact a commission does not necessar- ing process in Michigan require suggests voters have deemed it ily ensure a timely, effective, and the exercise to be completed once unwise to leave the matter en- efficient redistricting process. every 10 years, beginning No- tirely to the discretion of any vember 1, 2001. This date was branch of government, which is What guidelines should govern set to accommodate the sched- currently the case. Redistricting the process? With the exception ule of the decennial census. language in the current 1963 of the population standard de- Michigan constitutional language, Constitution is invalid and should manded by federal law, other although voided in 1982, contem- be eliminated and replaced. If basic redistricting guidelines are plated that redistricting would Michigan voters decide to call a enumerated in state statute (PA occur once every 10 years. Ab- constitutional convention, the 463), as opposed to the Michigan sent constitutional language to convention might consider the Constitution. Should these basic the contrary, the Michigan Legis- following questions/issues for geographical standards (contigu- lature can engage in the process Article IV: ity, compactness and local bound- more frequently than once every aries) appear in Michigan’s fun- 10 years by making statutory Who should be responsible for damental law? Should this list be changes. Consideration might be redistricting? As a result of PA expanded to include political/le- given to limiting, by way of con- 463 of 1996, the Michigan Legis- gal factors, such as preservation stitutional language, the redis- lature is tasked with redistricting of communities of interest, pro- tricting process to once every 10 the House of Representatives and tecting minority voting rights, years, as has been common prac- the Senate every 10 years. The protection of incumbents, and/or tice for over 180 years. potential problems associated assuring competitive partisan with entrusting the responsibility elections? Other states, most notably Texas, for the redistricting process to the have attempted mid-decade re- same body that is directly af- Politics, generally, is an inherent districting with many of the at- fected by its outcomes are obvi- aspect of the redistricting pro- tempts challenged in court and ous. The potential for political cess. The history of the use of resulting in varying outcomes. In manipulation was an underlying specific “political” factors to draw many cases, the redistricting pro- reason behind the establishment legislative districts is replete with cess was revisited by a newly- of a separate body to handle re- legal challenges. Some factors, elected state legislature after a districting by the framers of the such as protecting incumbents, shift in political power occurred. 1963 Constitution. have passed legal muster, while In a number of cases, mid-decade others remain unresolved. The redistricting plans replaced plans Thirteen states give first and fi- courts have considered the issue drafted by the courts and used in nal responsibility for redistricting of “political gerrymandering” (i.e., previous elections. to an appointive commission out- drawing of legislative districts to side of the states’ legislatures. advantage one political party over The 2010 census is currently on- Two states use advisory commis- another) and have found the is- going, the results of which are sions to draft redistricting plans sue to be “nonjusticiable” (i.e., scheduled to be released to states that the states’ legislatures are court could not rule on the issue) for redistricting purposes no later presented with and five states than April 1, 2011. Michigan law employ backup commissions requires the legislature to develop when the legislatures are unable 7 Vieth v Jubelirer (541 US 267, 281; house and senate redistricting to develop plans. Iowa, unlike 2004)

4 CRC Special Report on Michigan Constitutional Issues plans based on the new census mary elections. In light of this rent redistricting process it would data by November 1, 2011, to be timeline, if a constitutional con- not be implemented until after first used at the August 2012 pri- vention were to modify the cur- the next U.S. census, in 2020.

What about Congressional Redistricting? The 1963 Michigan Constitution does not contain any mention of redistricting U.S. congressional districts. Federal law grants to state legislatures the authority to draw up the boundaries of congressional districts equal to the number of seats in the U.S. House of Representatives each state is entitled to based upon the most recent U.S. census. The U.S. Supreme Court has ruled that states are required to redistrict solely on the basis of population, ensuring that each district is of equal population.1

In addition to the strict population guideline, states are allowed to adopt secondary guidelines to govern the process. Michigan’s current 15 congressional districts are established in law (2001 amendments to Public Act 282 of 1964), under statutory guidelines contained in the Congressional Redistricting Act (Public Act 221 of 1999). In general, these guidelines are similar to those governing redistricting of Michigan’s legislature: contiguity, compactness, and adherence to local boundaries. A constitutional convention might consider what entity would be responsible for devising redistricting plans and what criteria, in addition to population, should be used.

1 Wesberry v Sanders (376 US 1; 1963)

Institutional Issues

State legislative bodies are de- with bicameral (two chamber) leg- years, despite the fact that con- signed to reflect a state’s people islative branches of government. stitutional language contemplates and political traditions. These fac- Nebraska’s legislature consists of a part-time body. Provisions re- tors and others account for the a single chamber (unicameral) garding immediate effect (Section structure and overall size of the called the senate. Commonly, the 27), special session (Section 28), legislative body in a particular “upper” chamber in the bicameral gubernatorial “pocket veto” (Sec- state as well as the sizes of the structure is smaller in size and its tion 33), and referendum (Article individual chambers that com- members serve longer terms. The II, Section 9) were included in the prise the body. As a result, it can Michigan Senate, created in Sec- 1963 Constitution based on the be said that there is no “typical” tion 2, consists of 38 members assumption that the legislature structure or size for a state legis- serving four-year terms. The would function in a part-time ca- lative body in the aggregate or Michigan House of Representa- pacity. Nothing in Section 13 for its individual chambers. tives (Section 3), similar to the dealing with convening in “regu- States also vary considerably in U.S. House of Representatives, is lar session”, or elsewhere for that their use of term limits for mem- larger in size (110 members) and matter, prevents the legislature bers of legislative bodies. its members serve shorter terms from functioning as it currently (two years). does, i.e., year-round session. Legislative Structure Michigan’s legislature has oper- Nine other states have full-time Most states, including Michigan, ated as a full-time, continuous legislatures that meet throughout mirror the Federal government body for much of the past 30 the year (identified in Table 2

5 CRC Special Report on Michigan Constitutional Issues below). The remaining states The adoption of new constitutions cades ago. Advances in technol- have either part-time bodies (18 and amendments to those con- ogy, transportation, and com- states) or a “hybrid” legislature stitutions has gradually increased munications have helped legis- (22 states), meaning the legisla- the number of legislators over lators manage the growth in tive session is limited in duration time (Table 1). legislative districts and attend to but the legislators are engaged the representation demands of in other related activities when Representation. Michigan’s popu- constituents. not in session. lation in 1960 was 7,823,194. The average senate district contained Interstate Comparisons. To Size and Chamber Makeup. Pro- 205,874 people and the average varying degrees, 33 states have visions in each of Michigan’s four house district contained 71,120 modified the overall size of their constitutions have allowed the residents. Although Michigan’s legislative bodies and their con- size of the legislature to grow population has grown steadily stituent chambers from 1960 to from 66 members in 1835 to 148 since the adoption of the 1963 2009. No identifiable pattern is members today. Under Constitution, the size of its legis- apparent with respect to the ra- Michigan’s 1835 constitution, the lature has remained constant. tionale for increasing or decreas- number of representatives was ing the size of the legislative bod- required to be at least 48, but not Based on the U.S. Census Bureau’s ies over time. In these states, greater than 100, while the num- 2009 estimate of Michigan’s popu- 19 legislatures were decreased in ber of senators was required to lation (9,969,727), the average size and 14 were increased. be as close as possible to one- senate district contained 262,361 Overall, there has been a general third of the number of represen- residents and the average house decrease in the total number of tatives. The 1835 Constitution district contained 90,634 resi- legislators in the United States, required the addition of senate dents. Today, senators and rep- from 7,781 in 1960 to 7,382 in and house districts following the resentatives represent populations 2009 according to the National organization of counties and as a about 27 percent larger, on aver- Conference of State Legislatures. result of reapportioning. age, than they did over four de- Twenty-one of the states that

Table 1 Number of Senators and Representatives under Michigan Constitutions

Ratio Senate House Total Member to Population 1835 Constitution 1835 16 50 66 1: 479 1850 22 63 85 1: 4,678 1850 Constitution 1851 22 63 85 1: 4,678 1908 32 100 132 1: 18,341 1908 Constitution 1909 32 100 132 1: 48,271 1963 34 110 144 1: 54,328 1963 Constitution 1964 38 110 148 1: 52,859 today 38 110 148 1: 67,363

Source: 2008 Michigan Manual

6 CRC Special Report on Michigan Constitutional Issues

Table 2 Full-Time Legislatures: Changes in the Size of Legislatures 1960 - 2009

1960 2009 1960 2009 Percent Legislative Legislative Percent Last State Population Population Change Districts Districts Change Modification California 15,850,000 36,961,664 133% 120 120 0% na Florida 5,000,000 18,537,969 271% 133 160 20% 1972 Illinois 10,113,000 12,910,409 28% 235 177 -25% 1982 Massachusetts 5,167,000 6,593,587 28% 280 200 -29% 1978 New Jersey 6,099,000 8,707,739 43% 81 120 48% 1968 New York 16,827,000 19,541,453 16% 208 212 2% 2004 Ohio 9,739,000 11,542,645 19% 177 132 -25% 1966 Pennsylvania 11,343,000 12,604,767 11% 260 253 -3% 1966 Wisconsin 3,964,000 5,654,774 43% 133 132 -1% 1972

Michigan 7,848,000 9,969,727 27% 144 148 3% 1964

Source: National Conferences of State Legislatures, “Changes in the Size of Legislatures, 1960 – 2006”. U.S. Census Bureau.

have made changes to the size Constitutional Convention Issues budget ($46 billion), but the per- of their legislative bodies over the ception of cost-reduction may If the Michigan electorate decides past 45 years have done so mul- have populist appeal. to call a constitutional convention tiple times and the remaining 12 at the November general election, states made a single change dur- Converting to a part-time legisla- the convention might consider the ing this period. ture, however, reduces neither following questions dealing with the number nor the scope of im- Of the states with full-time legis- the size and structure of the leg- portant public policy issues con- latures, five states reduced the islative body. fronting the legislative branch. sizes of their legislatures and four Such a conversion means that Should the Structure of the Leg- states increased the sizes of their less time will be devoted to “non- islative Branch Change? Argu- legislative bodies (Table 2). mandatory” legislative responsi- ments in favor of switching to a Some of these changes have bilities in order to address those part-time legislature rest largely been very minor, such as “mandatory” responsibilities, such on the costs involved in running Michigan’s addition of four sen- as enacting an annual budget, in a full-time body. By limiting the ate seats in conjunction with the a timely manner. length of the legislative session adoption of a new constitution in (e.g., specific number of “session” 1964. In contrast, the Massachu- Should the Size of the Legisla- or calendar days) legislators’ sala- setts Constitution, the oldest state ture Change? Generally, justifi- ries and benefits can be reduced constitution in the country, re- cations for making changes to commensurately. Reductions in duced the number of legislators the size of state legislative bod- staff levels and associated costs by 80 in 1978. New Jersey had a ies have been based on the might also accompany a switch 48 percent increase in the size of grounds of representation, costs, to a part-time legislature. Actual its legislature over this period, a and/or efficiency. Legislative dis- savings are likely to be small in change that closely reflects the trict population growth can af- relation to Michigan’s total state 43 percent population growth. fect how individuals perceive

7 CRC Special Report on Michigan Constitutional Issues they are being represented by Advocates of reducing the num- House (three times) and provides their legislators. Increases in ber of legislators suggest that a lifetime ban following service. legislative district size generally smaller legislative bodies are Only five other states employ life- result in more heterogeneous likely to be more efficient and time limits, which are much more districts on many fronts. Elected capable of getting things done in restrictive than consecutive limits. officials are expected to repre- a timely fashion. Opponents ar- sent the interests of their dis- gue that, for better or for worse, A constitutional convention could tricts on a host of issues and a the legislative process is not in- consider any number of options decrease in district homogene- tended to be neat and efficient. with respect to the term limit pro- ity, perceived or otherwise, can The complex and very difficult visions of the current document, reduce representation in the leg- issues facing legislative bodies including complete abolishment. islative arena. Further, given the each legislative session can re- Elimination of the limits alto- increased workload associated quire a substantial amount of gether is doubtful in light of the with representing more constitu- time and resources to under- failure to do so in other states ents, legislators may have to re- stand, investigate, and develop across the country. Voters in duce the amount of resources consensus around. states with term limits appear to they devote to each constituent, want some form of forced evacu- which also affects representa- Legislative Term Limitations ation from their legislative bod- tion. Advances in communica- ies. Given the restrictive nature tion technology can help reduce In the 47-year history of the 1963 of Michigan’s limits, the topic of the effects of legislative popula- Constitution, the concept of leg- shortening them is unlikely to tion growth on representation. islative term limits is a fairly new occupy much time either. It is one. Michigan voters, via a citi- most likely that a convention, if Generally speaking, larger legis- zen initiative in November 1992, called, would focus its discussion latures cost more. However, re- approved constitutional term lim- on the pros and cons of length- ducing the size of a legislative its for those serving in the Michi- ening the limits now in place. body does not guarantee a reduc- gan Senate and House of Repre- Such discussions could address tion in costs. The number of sentatives effective for terms service time in the individual people requiring representation beginning on or after January 1, chambers or an overall limit for and the accompanying workload 1993. Correctly, or otherwise, serving in the legislature. remains when legislative district some people contend that sizes are expanded. Fewer Michigan’s current term limita- Setting Elected Officials’ elected officials may result in tions for legislators are partially Compensation larger staffs to handle the to blame for the perceived dys- workload associated with legisla- function of the institution at Few public policy issues gener- tive activities such as answering times, as marked by the adop- ate as much public attention as constituent inquiries, preparing tion of late state budgets in two compensation levels of elected and analyzing legislation, prepar- of the past three years. officials. The level of attention ing for committees. The increase heightens when these officials in staff size and the accompany- Michigan’s move to adopt term receive, what appear to be, gen- ing costs could offset any savings limits occurred during the same erous raises or when adjustments resulting from reducing the num- time that other states approved are made during periods of aus- ber of legislators. It is likely that similar measures. Today, 15 tere public budgets. Questions there is a greater relationship states, including Michigan, have and concerns also arise when the between state population and legislative term limits. Michigan’s process for determining pay lev- legislative costs than there is be- model, contained in Section 54, els is not transparent, lacks ac- tween the number of legislators caps the number of times that an countability, or does not apply and legislative costs. individual may be elected to the uniformly to all officials. Senate (two times) and to the

8 CRC Special Report on Michigan Constitutional Issues

Michigan citizens have main- reductions, but without re- The 2009 recommendations were tained influence or control over ducing salaries or expenses precedent-setting in that they state officers’ compensation in a below current levels; were the first in the 40-year his- variety of ways since Michigan’s • compensation adjustments tory of the SOCC process that first constitution. From the 1835 now become effective in the called for year-over-year salary Constitution to the 1963 Consti- legislative session after the reductions of top elected officials. tution and two subsequent next general election; and While SOCC-recommended salary amendments, many changes oc- • the legislature can establish increases have been rejected curred in the officials covered and qualifications for SOCC mem- (1991), SOCC has never recom- the method in which compensa- bership. mended decreases from current tion changes were made. Under salary levels. Section 12 does not the 1963 Constitution, as It is generally viewed that these prohibit such decreases; however, amended in 1968, the body re- changes addressed some of the all “determinations” prior to 2009 sponsible for recommending major failings of the previous dealt with increases. As a result compensation levels for Section 12 provisions, which were of its constitutional history, the Michigan’s top public officials is adopted via the 1968 amend- term “determinations” effectively the State Officers Compensation ment. The changes increased the became synonymous with Commission (SOCC) and provi- accountability associated with changes that would increase pay sions regarding its actions are setting elected officials’ pay by levels, not decrease them. contained in Section 12. requiring an affirmative legislative vote and requiring an interven- Constitutional Convention Issues Background ing general election before com- A constitutional convention, if Section 12 empowers the State pensation changes take effect. called at the November general Officers Compensation Commis- election, might be expected to SOCC Determinations 1968 to sion (SOCC) to establish salary weigh in on the following issues 2009 and expense allowances for top related to setting compensation elected state officials of all three Under the pre-2002 provisions of levels for Michigan’s top state branches of government, subject Section 12, SOCC determinations officials. to legislative approval. Amend- took effect unless rejected by ments to Section 12 were ap- two-thirds of the members Is SOCC the Right Body? The proved by Michigan voters in elected to and serving in the SOCC has not operated flawlessly 2002; however, the implement- house of the legislature. Between or without controversy during its ing legislation did not pass until 1968 and 2002, rejection oc- 40-year history. The 1968 amen- 2006 (Public Act 629) and took curred once in 1991, which es- datory language was deemed effect January 1, 2008. Under the tablished pay increases for 1991 unacceptable and replaced in provisions of the 2002 amenda- and 1992. Faced with a mark- 2002, and delays in passing tory language to Section 12: edly different economic climate implementing legislation for the • the attorney general and and state finances in persistent new language resulted in the secretary of state were deficit, the 2009 SOCC made sal- SOCC taking no action between added to the SOCC determi- ary recommendations calling for 2002 and 2009. After finally get- nation process; 10 percent reductions for all cov- ting language in place that appears to provide greater transpar- • the legislature, by majority ered positions, except Supreme ency, accountability, and vote, now has to approve Court justices. The recommen- uniformity with respect to setting SOCC determinations for the dations received legislative ap- compensation levels, a constitu- adjustments to occur; proval in April 2009 and will take tional convention might consider • the legislature now has the effect following the 2010 general an alternative to the SOCC. While authority to amend SOCC de- election for those officials taking many states use an independent terminations by proportionate office on January 1, 2011.

9 CRC Special Report on Michigan Constitutional Issues body such as the SOCC, others creases and decreases (“determi- general changes in pay for such a employ a variety of methods for nations”), Article VI, Section 18 broad swath of government em- determining elected officials’ (Judicial Branch) specifically ad- ployees is divided among a num- compensation levels, ranging dresses reducing judicial salaries. ber of different entities, including from automatic adjustments Although the SOCC is empowered SOCC (elected officials), Michigan based on price or income levels to set compensation levels for Civil Service Commission (execu- to legislative determination of justices of the Michigan Supreme tive branch employees), Michigan pay. Leaving decisions to current Court, SOCC determinations in- Supreme Court (judicial branch sitting legislators would make directly impact the salary levels employees), and Michigan Legis- them directly accountable to vot- of judges of Michigan’s lower lature (legislative branch employers for their compensation levels. courts (i.e., Court of Appeals, Cir- ees). Given the fact that the SOCC cuit Court, and Probate Court). lacks authority over “all other Reducing Salaries. The 2009 The salaries of these judges are branches government”, it would SOCC salary determinations shed statutorily linked to the Supreme appear that this body, while hav- light on the interaction of two Court justices’ salaries pursuant ing valid authority to increase ju- sections of Michigan’s Constitu- to the Revised Judicature Act, PA dicial salaries (directly and indi- tion that previously were not con- 236 of 1961. rectly), does not have the sidered to be interrelated. Al- constitutional power to reduce though a formal legal opinion has Article VI, Section 18 stipulates such salaries, creating a scenario not been rendered, it appears that judicial salaries must be uni- where judicial salaries effectively that the two sections conflict un- form and reductions may not oc- can never be reduced. This in- der certain circumstances. cur during a term of office unless consistency might be an issue con- Whereas the provisions of Article there is a “general salary reduc- sidered when examining changes IV, Section 12 apply to all elected tion in all other branches of gov- to the constitutional provisions of officials with respect to pay in- ernment.” Authority to effect such Article IV and Article VI.

Other Issues

Legislative Immunity from from early January until adjourn- to be in light of the current prac- Civil Arrest and Process ment sometime around Decem- tice of year round legislative ses- ber 25. Given the reality of con- sions. One option would be to Section 11 provides state sena- tinuous legislative sessions, limit legislative immunity to tors and representatives a privi- Section 11 provides legislators “working sessions” of the legis- lege of immunity from civil arrest with an uninterrupted immunity lature, which would allow civil and civil process while the legis- from civil arrest and civil process. arrest or civil process while the lature is in session and for the legislature was in recess. five days both before and after In 1982, voters adopted an session. The three previous con- amendment to Section 11 pro- Appropriation Bills Not Sub- stitutions contained similar proposed by the legislature which ject to Referendum visions. However, neither the authorized legislative immunity Section 34 provides that all bills, drafters of the present or former “except as provided by law.” except those appropriating money, legislative immunity provisions, However, to date the legislature passed by the legislature and ap- nor the voters who adopted the has not utilized this amendatory proved by the governor may in- respective Michigan Constitutions language to restrict the scope of clude a provision that requires which contained them, contem- legislative immunity. A state con- voter approval before becoming plated that the legislature rou- stitutional convention might wish law. Similarly, Section 9 of Article tinely would be in session to reconsider what the appropri- II shields all acts containing ap- throughout the year. Michigan’s ate scope of such immunity ought legislature routinely is in session propriations from citizen-led ref-

10 CRC Special Report on Michigan Constitutional Issues erenda. These two sections, taken controversial issue on to the versial legislation from aspects of together, effectively prevent the people. As was noted in CRC’s direct democracy. Subjecting laws legislature from relinquishing its previous paper, Article II – Elec- that make appropriations to the “power to appropriate” to other tions, making appropriations “ref- referendum would require entities, in this case by passing a erendum-proof” can shield contro- changes to the constitution.

Conclusion

The current language contained with the structure and operation but rather an outcome of the sub- in Article IV dealing with redis- of the legislative body itself. ject matter and environment that tricting should be replaced with Some people might view such lawmakers must deal with. While new provisions that are fully com- institutional matters through the it is likely that “structural” pliant with the federal constitu- perspective of the current politi- changes would be best addressed tion and court cases. At a mini- cal debates in Lansing and ren- during a constitutional convention mum, the new language should der a decision that something rather than via piecemeal amend- address: who is responsible for must be “structurally” wrong with ments to the Michigan Constitu- the redistricting process; what the legislature and therefore sup- tion, fundamental flaws in the state-specific criteria are to be port modifications to Article IV. institutional makeup and opera- used in the process; and how of- However, such an approach ig- tion of the legislative branch are ten it should occur. Redistricting nores the current realities of the not currently apparent. is too important to the elective environment in which all modern franchise and state and national legislative bodies operate. Eco- Michigan’s current term limita- traditions of representative de- nomic, demographic, and social tions were added to the Consti- mocracy to not carry the weight changes are occurring at rapid tution by amendment in 1992 and of constitutional attention. Leav- rates and the resultant public modifications could be made in ing redistricting to the whims of policy issues facing legislators are the same manner if so desired. the legislature every 10 years can as significant and challenging as Voters are beginning to see some foster public distrust and concern they have ever been. Deficien- of the practical and measurable regarding the end product. cies in the Michigan legislature, outcomes of the tight, lifetime whether real or not, may not be limits in place in Michigan and will Other sections of Article IV that owed to something fundamen- likely continue to face the issue would likely receive attention at tally wrong with the constitutional in the future, well after the vote a constitutional convention deal foundations of the entity itself, in November.

11 CRC Special Report Michigan Constitutional Issues

No. 360-08 A publication of the Citizens Research Council of Michigan May 2010 Eighth in a series of papers about state constitutional issues ARTICLE V – EXECUTIVE BRANCH

In Brief

State government powers are expansive and shared among three branches of government: legislative, executive, judicial. Executive power resides with the governor. With the exception of the three departments headed either by popularly-elected individuals (secretary of state and attorney general) or a board (state board of education), the governor exercises unified direction of all the departments and agencies in the executive branch.

For 47 years, Michigan state government has operated under a constitutional framework that centralizes executive power in a single office and provides for a strong governor. With the exception of two amendments to Article V, “Executive Branch”, the original constitutional provisions governing the operations of the executive branch remain basically intact. Despite this consistency over the years, a number of issues might be considered by a potential constitutional convention charged with looking at Article V dealing with: executive reorganization powers, single versus plural executive, filling legislative vacancies, office vacancies of executive officials, the governor’s role in the state budget process, and the governor’s appointment powers.

Introduction

The separation of powers doctrine provides for three Department of Education). Article V also discusses branches of government (legislative, executive, and the organization of the executive branch. judicial). In this model of governance, the executive branch is responsible for overseeing the execu- During the 1961 Constitutional Convention, consid- tion of laws and the delivery of governmental ser- erable debate and action surrounded the topic of vices. Article V of the Michigan Constitution vests strengthening the power of the governor, which re- the executive power of state government in the gov- sulted in major changes in the executive article. The ernor and broadly defines the appointive, governor’s role in governing state affairs was reorganizational, and budgetary powers of the of- strengthened by: 1) extending the term of the office fice, and it also allows the governor to call the legis- from two to four years; 2) reducing the number of lature into extraordinary session. In addition to the elective executive branch officers from eight to four; governor, Article V provides for four other popularly- 3) increasing the authority of the governor by cap- elected executive branch officials to play roles in the ping the number of departments and allowing greater execution of state government; lieutenant governor, discretion in the organization of the executive branch; attorney general, secretary of state, and state board and 4) expanding the governor’s role in the budget of education (an eight-member plural head of the process.

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

From a public policy standpoint, only two were approved. The first limitations for the governor, lieu- very few issues have arisen in the successful amendment (1978) tenant governor, secretary of past 47 years pertaining to the had the effect of further central- state, and attorney general (Sec- proper functioning of Article V izing executive power in the gov- tion 30). On the surface, such relative to the governor’s ability ernor by replacing the State High- limitations theoretically dimin- to effectively carry out his or her way Commission with the State ished the power of the governor executive powers. This fact is Transportation Commission and to the benefit of the legislative evidenced by the relatively few changing the Commission’s pri- branch; however, term limits also times that amendments have mary function from administrative were enacted at the same time been offered to Article V; of the to policy making (Section 28). A for state legislators. five contemplated amendments, 1992 amendment provided term

Constitutional Convention Issues Despite the relatively few at- authority in the executive powers power. The legislature’s initial ac- tempts to modify Article V over of state government. Proponents tions, as codified in the Executive the years, a constitutional con- of a new constitution sought to Organization Act of 1965 (Public vention is likely to consider a centralize executive power in the Act 380 of 1965), and any subse- number of issues surrounding the governor and through a new struc- quent reorganizations by the gov- executive branch of government, ture for the executive branch. ernor were limited by the provi- including: 1) the reorganization However, concerns were raised sions of Article V, Section 2, which powers of the governor; 2) single about the organizational powers capped the number of principal versus plural heads of depart- pertaining to the executive branch departments at 20. ments and agencies; 3) the au- and how to balance the new po- thority of the governor to call litical power of the governor. The In addition to the cap on depart- special elections to fill legislative 1961 Constitutional Convention ments, Section 2 further allows the vacancies; 4) issues related to resolved this by establishing the governor to “make changes in the executive office vacancies; 5) the broad framework for the execu- organization of the executive governor’s responsibility for main- tive branch in the new constitu- branch or in the assignment of taining annual budget balance, tion and granting organizational functions among its units which he particularly as it relate to execu- authority to both the legislative considers necessary for efficient tive order reductions; and 6) the and executive branches. Initial administration.” Five principal de- governor’s appointment author- “organizational” authority was pro- partments are established in the ity as it is limited by the Senate’s vided to the legislature via the 1963 Constitution, either by spe- advice and consent power. temporary provisions of the new cific reference (e.g., state transpor- constitution and required this tation department and state de- Executive Reorganization power to be exercised within two partment of education) or because Power years of the effective date of the language requires certain individu- new document (Schedule and als to head a principal department One popular criticism of the 1908 Temporary Provisions, Section 12). (e.g., attorney general, secretary Constitution was that it provided After this initial organization by of state, and state treasurer). for a de-centralized executive law, the constitution provided the Outside of the five constitutionally- branch which lacked clear lines of governor with “reorganizational” established departments, the gov-

2 CRC Special Report on Michigan Constitutional Issues ernor has substantial authority to report to the state’s chief execu- Single versus Plural Execu- structure the executive branch in tive. Opponents of strengthening tive the manner he or she desires. the governor would raise concerns about concentration of power. The 1963 Constitution favored The governor’s reorganization au- the “single head” over the “plu- thority is not absolute; it is sub- A second issue, the legislature’s ral head” form of governance for ject to legislative “veto” in that role in executive branch reorga- principal departments within the executive orders contemplating nization, arises because some executive branch. This repre- organizational changes can be executive branch reorganizations sented a departure from the pre- nullified if disapproved by a ma- have generated considerable leg- vious constitution that placed jority vote in both chambers of the islative scrutiny, especially in re- control of executive branch de- legislature. Until the early 1990s, cent years. Heightened legisla- partments and agencies with vari- Michigan state government oper- tive scrutiny dates back to 1991 ous boards and commissions. ated with 19 departments (origi- when two executive orders were Section 3 of the current document nal allocation by The Executive challenged in court on the states, “The head of each princi- Organization Act of 1965) and grounds that the governor ex- pal department shall be a single there were few changes to the ceeded his constitutional author- executive unless otherwise pro- organization of the executive ity and violated state law. In one vided in this constitution or by branch; however, over the past 20 case brought by the speaker of law.” While the 1963 Constitu- years, the organization of state the House of Representatives tion allows for the plural form of government has undergone sub- against the governor, the Michi- department head, it requires the stantial changes, with the stated gan Supreme Court ultimately governor to appoint members of goal of reducing the number of upheld the governor’s power to such boards or commissions, un- departments through consolida- restructure the Department of less these members are elected tions and eliminations. The execu- Natural Resources. More recent or appointed pursuant to other tive branch is currently organized reorganization efforts that abol- constitutional provisions. into 15 principal departments. ished the Department of History Given the changes to the execu- Arts and Libraries and changed Since the adoption of the current tive branch over the last two de- the authority of the Commission constitution, the number of plural cades, issues have arisen regard- of Agriculture and Natural Re- heads of departments has de- ing the governor’s reorganization sources Commission, although clined, in part due to departmen- powers contained in Article V that not subjected to judicial review, tal consolidations and elimina- might be considered by a consti- received considerable attention tions. For example, the tutional convention. by the legislature. A constitu- Department of Civil Service was tional convention may review the eliminated in 2007, and the con- Given the general trend towards governor’s authority to abolish stitutionally-established Civil Ser- fewer departments, consideration and modify existing statutory de- vice Commission, which previously might be given to further limiting partments and commissions, and served as the head of the depart- the number of state departments. to create new departments ment, was transferred to the De- Although justification for most through the executive order pro- partment of Management and departmental consolidations and cess. Consideration might be Budget. More recently, executive eliminations to date have been given to the constitutional re- reorganization orders changed made on the grounds of efficiency quirement that both legislative how the directors of the Depart- and cost savings, these changes chambers must disapprove ex- ment of Agriculture and the De- entail governance issues as well. ecutive order reorganizations by partment of Natural Resources Proponents of further centralizing changing the threshold to disap- and the Environment are selected and strengthening the powers of proval by either house, a position to provide direct gubernatorial the governor would likely support that proponents of stronger leg- appointment of these positions. efforts to reduce the number of islative control over the executive As a result of these recent department heads that directly branch structure might advocate. changes, only two principal de- 3 CRC Special Report on Michigan Constitutional Issues partments (of 15 currently) are pendence and insulation from conducting special elections to fill headed by the plural form of gov- political manipulation. Bipartisan vacancies can prove problematic ernance, the Department of Edu- representation on these bodies, and costly, especially if a vacancy cation (elected) and the Depart- which is often required, can en- occurs near the end of a term. ment of Civil Rights (appointed). sure that a minority voice in the policy debate is heard. On the Some of the issues surrounding The single executive structure has other hand, critics suggest that timing have been attended to with not been universally applied to such bodies lack accountability the consolidation of election dates the state administrative agencies and make timely decision-making in Michigan, but the governor is that exist within the principal de- difficult to achieve. The wide- not bound by such limitations and partments. A host of plural bod- spread and disparate use of these may call special elections when he ies established within the depart- bodies throughout state govern- or she wants. Generally, filling a ments exercise administrative ment results in little consistency. vacancy requires a primary elec- and/or advisory functions. Nearly The various bodies share little in tion followed by a general elec- all of these bodies are established common in terms of internal option; however, the Michigan Elec- within state law, while some have erations, membership selection, tion Law (Public Act 116 of 1954) constitutional status (e.g., Civil or general roles and responsibili- permits the governor to direct that Service Commission). Two issues ties, all issues which can make it the vacancy be filled at the next arise here that might be consid- difficult for citizens to understand general election if the vacancy oc- ered by a constitutional conven- how their government is struc- curs after the primary election and tion. The first issue relates, in a tured and operates. before the general election. By similar fashion, to that discussed statute, candidates from each po- above regarding “single head” Legislative Vacancies litical party to fill the unexpired versus “plural head” for adminis- term are nominated by county trative agencies. Should all ad- Section 13 requires the governor committees of the respective po- ministrative agencies exist with a to call elections to fill vacancies litical parties. In view of the de- single executive to foster greater that occur in the House of Repre- sirability of the governor to have management control and effi- sentatives and the Senate. This discretion in this matter, a consti- ciency? Plural bodies serving in method for filling legislative vacan- tutional convention might consider advisory capacities are probably cies has been in operation dating modifying the mandatory intent of best to ensure that different per- back to the 1908 Constitution. the language to reflect the flex- spectives and points of view are The constitutional language is ibility that has been afforded to considered when public policy is written in a way that provides the the governor in practice. debated. governor with considerable flexibility in the application of this A constitutional convention might Another issue that arises con- long-standing power. While the also consider practices in other cerns the number of plural- language requires the governor to states and craft a new method for headed entities that exist at the call such elections, it does not pro- filling legislative vacancies. Ac- sub-department level. Unlike the vide any sense of timing for such cording to the National Conference principal departments, the maxi- elections. Vacancies in either the of State Legislatures, 25 states, mum number of which is capped House or Senate can leave con- including Michigan, have provi- in the constitution, the executive stituents with a sense of under- sions to fill legislative vacancies by branch is not bound by a specific representation in Lansing, which special election and the remain- number of boards or commissions can be especially problematic ing states use an appointive pro- that can exist within each depart- when the length of a vacancy is cess. In 11 of the “appointive” ment. These entities are very extended because of the political states, the governor makes the common in both the private and motives of the governor. While appointment, while seven states public sector governance models long-standing vacancies can dam- give this authority to county com- and advocates for them contend age citizens’ sense of representa- missioners. Another five states that they provide a level of inde- tion in the halls of government, grant the appointment authority 4 CRC Special Report on Michigan Constitutional Issues to the same political party as the vacancies and the devolution of ing officer, and is allowed to vote legislator that vacated his office. gubernatorial powers caused by only to break a tie in the 38-mem- In two states, the legislature ap- travel should be treated the same ber body. points the replacement to com- as those caused by an “inability” plete the term of the individual to serve. Vacancies in other statewide- that left office.1 elected offices are filled accord- Section 26 provides a clear line ing to provisions contained in the Office Vacancies of of succession to the office of the 1963 Constitution. Section 21 Statewide-Elected Officials governor when a vacancy occurs. requires the governor to appoint The first person to fill a guberna- replacements for vacancies in the Timely and clear lines of succes- torial vacancy is the lieutenant offices of secretary of state and sion relating to vacancies in elec- governor, followed by other state- attorney general. Without a tive office are hallmarks of democ- wide-elected officials. However, means to fill a vacancy in the of- racies. Vacancies in the offices of the Constitution is silent with re- fice of lieutenant governor, it must statewide-elected executive spect to filling a void in the office remain unfilled until the next gu- branch officials can be either per- of lieutenant governor. The lack bernatorial election, a scenario manent (resignation, death) or of specific constitutional provi- that occurred when Lieutenant temporary (absence from state, sions for filling a vacancy in this Governor Milliken ascended to the incapacitation). Article V covers office was a change from the chief executive post after Gover- these issues, but it is deficient with 1908 Constitution, which allowed nor Romney resigned to become respect to vacancies in the office the governor to appoint a replace- Secretary of the U.S. Department of lieutenant governor and it could ment. A constitutional conven- of Housing and Urban Develop- be updated to reflect the modern tion might revisit the issues sur- ment in 1969. day roles and responsibilities of rounding vacancies in the office the governor. of lieutenant governor. Vacancies in the office raise both practical and political issues. Po- Section 26 discusses how tempo- The lieutenant governor is one of sitions on statutorily-created rary gubernatorial vacancies, such four statewide-elected officials boards, such as the State Admin- as out-of-state travel or “inability” serving in the executive branch. istrative Board, that the lieuten- to serve, are to be handled. With However, unlike the secretary of ant governor serves on would respect to such vacancies in the state and attorney general, the have to remain vacant until after office of the governor, the 1963 lieutenant governor appears on a gubernatorial election. Similarly, Constitution makes no distinction. the same ballot as the governor, tie votes in the Michigan Senate Whenever such scenarios arise, thereby ensuring that the chief could not be broken because the the governor’s duties devolve to executive and his or her lieuten- constitution entrusts only the lieu- the lieutenant governor, or who- ant are from the same political tenant governor with this respon- ever is currently serving as the party. The lieutenant governor sibility. (The decision making pro- “next in line”. In light of modern has both executive and legislative cess in the Michigan House of day communication and travel roles, but does not possess any Representatives does not provide speeds, and the frequency and unique executive branch powers a procedure, constitutionally or reasons for the state’s chief ex- and only performs those duties statutorily, to break a tie.) ecutive to travel, it seems some- assigned by the governor. In fact, what antiquated that temporary Section 25 prohibits the governor The current system of gubernato- from delegating any vested pow- rial succession introduces a politi- ers to the lieutenant governor. In cal consideration: when a lieuten- terms of constitutional legislative ant governor ascends to the chief 1 National Conference of State Leg- powers, the lieutenant governor executive post and the lieutenant islatures, Filling Legislative Vacan- serves as the president of the position is left vacant, the “next in cies, January 2010. www.ncsl.org/ line” for gubernatorial succession default.aspx?tabid=19495 Michigan Senate and its presid- is the secretary of state, who may

5 CRC Special Report on Michigan Constitutional Issues or may not be from the same po- mented by other language (Sec- Appointment Power litical party as the new governor. tion 20) that requires the gover- In the absence of a lieutenant gov- nor, with the approval of the ap- Under the 1963 Constitution, the ernor, the secretary of state would propriations committees of the governor’s appointment power also serve as governor in the event House and Senate, to reduce ap- was considerably expanded from that the governor leaves the state propriation authorizations when what existed in the 1908 Consti- or is unable to perform the duties revenues fall below the estimates tution, mainly as a result of the of the office. Under the provisions on which appropriations were centralization of executive author- of the 1908 Constitution, the new based. This constitutional require- ity and the elimination of certain governor would appoint a lieuten- ment is implemented through elected positions in the executive ant governor to fill his or her va- statutory provisions contained in branch. Appointive positions are cated position, thus ensuring po- the Management and Budget Act created both in the Constitution litical party continuity in the (Public Act 431 of 1984) that di- (e.g., certain department heads governor’s office. However, this rect the governor to issue execu- and university board members) “appointive” process for filling va- tive order spending reductions as well as in state law (e.g., cer- cancies in the lieutenant governor’s when estimated revenues fall tain boards and commissions office could result in a person serv- short of spending. Appropriation within principal departments). In ing as governor who was not di- reductions ordered by executive some cases, the governor exer- rectly elected by Michigan voters. order require approval of the two cises the appointment power uni- appropriations committees only; laterally, while in other cases the While it is unlikely that a consti- appropriation reductions effected power is limited. tutional convention would find through appropriation acts, on the major problems with the practi- other hand, require a majority vote In many states and the federal cal issues associated with lieuten- in each chamber and signature by government, the appointment ant governor vacancies, it might the governor, who has line-item power held by the chief execu- find the political concerns of suf- veto authority. tive is subject to legislative scru- ficient weight to merit address- tiny, effectively creating a system ing how to fill vacancies in the The use of executive order spend- of checks and balances between office when they occur. ing reductions has become a key the two branches of government. component in the state’s arsenal In Michigan, the governor and the State Budget for maintaining balanced budgets Senate share in the responsibil- throughout the year, especially ity for selecting certain qualified In addition to the provisions de- during economic downturns when persons exempted from the state signed to strengthen the office of actual state tax receipts deviate civil service to serve in the ex- the governor from an organiza- substantially from the original es- ecutive branch of state govern- tional and management stand- timates. For the fiscal year 2008- ment. The foundation for shared point, the 1963 Constitution in- 2009 budget, and in response to appointment power exists in the cluded new provisions that fiscal effects of the “Great Reces- “advice and consent” provision of strengthened the governor’s role sion”, executive orders were used Section 6. Under this section, a in the state’s fiscal affairs. Spe- mid-year to reduce general fund gubernatorial appointment sub- cifically, the Constitution included spending by $356 million. The ject to advice and consent can be a new section that requires the executive order process enables nullified only if disapproved by a governor to submit to the legisla- the state budget to be modified majority vote within 60 days of ture for its consideration a bal- in an expedited way, avoiding the appointment being made. anced budget for all state operat- some of the delays that can ac- Absent such action, an appointing funds (Section 18). Previously, company the full legislative pro- ment stands. Michigan’s process executive budget submittal was cess. However, the process also is different from the federal governed by statutory law, not removes certain state fiscal deci- government’s process, in that in- constitutional law. This balanced- sions from the scrutiny of the en- dividuals nominated by the Presi- budget provision was supple- tire House and Senate. dent to serve in senior govern- 6 CRC Special Report on Michigan Constitutional Issues mental positions generally can Recent appointments have raised and policy over all public educa- not do so until they are confirmed issues regarding the timing of the tion, except higher education in- by the U.S. Senate. (Article II, governor’s use of appointment au- stitutions. The Board is responsible Section 2 of the U.S. Constitution thority, which might be considered for appointing the superintendent grants the President the author- by a constitutional convention. of public instruction. Consider- ity to appoint individuals to posi- Nothing in current law discusses ation might be given to centraliz- tions when the Senate is in re- the question of “when” a governor ing the governor’s executive au- cess; however, such can make an appointment. This thority over education policy appointments must be confirmed can prove problematic when a term matters by moving to an ap- by the end of the next session, for a position subject to guberna- pointed state school board and su- otherwise the position becomes torial appointment expires at or perintendent. vacant again.) In Michigan, gu- near the end of the current bernatorial appointees assume governor’s term in office. In such Other states vary in their use of their appointed positions upon cases, and when there is turnover appointive versus elective methods taking the oath of office as re- in the governor’s office, the appoin- to select public education officials. quired by Article XI, Section 1 and tee, although appointed by the pre- Of the states with boards of edu- continue to serve unless the full vious governor, effectively serves cation, 36 use some sort of appoint- Senate votes to disapprove the “at the pleasure” of the new gov- ive (usually by the governor) pro- appointment. ernor. In theory, nothing under cess. (Minnesota and Wisconsin current law prevents a governor do not have boards and the board As a matter of practice, the ad- from making appointments for in New Mexico is advisory only.) vice and consent process has terms that expire well-after he or Nine states, including Michigan, been used to varying degrees she leaves office, although as a employ elections to select board over the years. In some cases, practical matter this is most likely members while two states use a appointments have been subject to occur nearer the end of a combination of appointments and to little if any legislative scrutiny. governor’s time in office. elections. In 24 states, the chief In recent years, however, a quasi- state school official is appointed by formal process has been devel- Another issue relating to the the state board, while in 12 other oped and it has been applied governor’s appointment power states the governor appoints this more uniformly. There is no state that might be considered by a con- official. Fourteen states provide for statute governing the process; stitutional convention concerns a separately-elected chief state however, some attorney general the state administrative organiza- school official.2 opinions have been rendered on tion for the supervision of elemen- the subject. Ultimately, the pro- tary and secondary education. cess is a political one in that dis- The 1963 Constitution provides for 2 Education Commission of the approval results from a vote of a statewide election of the eight- States, State Education Governance the Senate. member State Board of Education, Models, March 2008. www.ecs.org/ a body responsible for supervision clearinghouse/77/78/7778.pdf

Conclusion

Unlike other articles in the 1963 forming language with the U.S. ganization. Nothing in Article V Constitution, Article V does not Constitution or U.S. Supreme has prevented the executive include provisions that have been Court decisions. A constitutional branch from governing effectively ruled unconstitutional or inoper- convention would likely examine over the past 47 years and no re- able. From this standpoint, a con- the broad issues dealing with the lated issues have risen to the level stitutional convention would not powers of the governor and ex- of crisis that would suggest im- be tasked with developing con- ecutive branch structure and or- mediate modification is necessary.

7 CRC Special Report Michigan Constitutional Issues

No. 360-09 A publication of the Citizens Research Council of Michigan June 2010 Ninth in a series of papers about state constitutional issues ARTICLE VI – JUDICIAL BRANCH

In Brief

State government powers are expansive and shared among three branches of government: legislative, executive, and judicial. Judicial power resides with the courts. In Michigan, the judicial system is composed of a Supreme Court, a statewide court of appeals, county or multi-county circuit and probate courts, and county or municipal district courts. The 1963 Constitution created “one court of justice,” meaning that all courts are organized under the Supreme Court and operate under rules and procedures created by the Supreme Court. It is likely that a constitutional convention, should one be convened, would focus on the operations of the judicial system within that framework, including: court organization, the role of the county clerk in circuit courts, the selection of justices and judges, court rulemaking, the funding of trial courts, and continuance of the Judicial Tenure Commission.

Introduction

Within the context of the separation of powers doc- … is vested exclusively in one court of justice which trine that characterizes Michigan’s state government, shall be divided into one supreme court, one court judicial power consists in general of the authority of appeals, one trial court of general jurisdiction exercised by courts to interpret the law. The exer- known as the circuit court, one probate court, and cise of that authority generally is limited to specific courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the mem- cases and controversies brought before the courts bers elected to and serving in each house. for resolution by public and private parties and may involve significant questions of public policy or merely Article VI has been amended three times by means pedestrian questions that are of importance only to of legislative proposals. In 1968, the people adopted the parties of the case. two separate constitutional amendments to 1) establish the Judicial Tenure Commission and 2) de- Courts derive their powers from the Constitution and fine the manner of filling judicial vacancies. In 1996, laws by which they are established. Article VI, Sec- the Constitution was amended to establish qualifi- tion 1 declares the judicial power of the state cations for judicial offices.

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

Constitutional Convention Issues

The 1850 and 1908 Michigan appealed to it from trial courts. “courts of limited jurisdiction that Constitutions granted the Su- Article I, Section 20 provides that the legislature may establish.” preme Court general superintend- everyone convicted of a criminal They have jurisdiction over all civil ing control over lower courts. offense, other than by a guilty claims up to $25,000 including However, by the time of the 1961 plea, has the right to an appeal. small claims, landlord-tenant dis- Constitutional Convention, circuit Decisions of the court of appeals putes, land contract disputes, and courts, and to a lesser extent pro- are final unless reviewed by the civil infractions. District court bate courts, had evolved into Supreme Court. judges also may conduct mar- quasi-independent entities whose riages in a civil ceremony. judges considered themselves Article VI, Section 11 creates cir- accountable only to the local vot- cuit courts as the trial court of Within Michigan’s trial courts, the ers by whom they were elected. general jurisdiction, with jurisdic- legislature has created specialty A majority of the delegates to the tion over all actions except those courts, such as mental health 1961 Constitutional Convention given by law to another court. It courts; drug/sobriety courts; child concluded that a more centralized has original jurisdiction over support specialty courts; and judicial structure – “one court of criminal cases, including felonies youth/teen or family courts. justice” – would be more efficient and certain serious misdemean- and economical. ors, and civil cases where the The State Court Administrative amount in controversy is $25,000 Office is the administrative Court Organization or more and cases where a party agency of the Michigan Supreme seeks an equitable remedy. Fi- Court. The Office assists the Su- In general, the overall organiza- nally, the court has jurisdiction preme Court to aid in the admin- tion of the court system would over family cases, appeals from istration of the courts. It helps likely be one of the first issues a other courts, and administrative to track and manage caseloads, constitutional convention might agencies. Circuit courts have su- mediates disputes between consider, should one be convened. perintending control over courts courts and their funding units, within the judicial circuit, subject provides technical assistance in The current organization places to final superintending control of the administration of the courts, the Supreme Court atop all other the Supreme Court. and provides education to sup- courts. It acts as the court of port operation of the courts. last resort and the body respon- Article VI, Section 15 creates pro- sible for overseeing all court divi- bate courts with jurisdiction over Starting with an examination of sions below it. admission of wills, administration court operations under the “one of estates and trusts, guardian- court of justice” principle, a con- The court of appeals is the inter- ships, conservatorships, and stitutional convention might con- mediate appellate court between treatment of the mentally ill and sider the extent lower courts have the trial courts and the Supreme developmentally disabled. been organized and operated ef- Court. This court is relatively new ficiently under direction from the in Michigan, having been estab- Finally, district courts were cre- state Supreme Court and the lished by the 1963 Constitution. ated under authority of Article VI, State Court Administrative Office. It hears civil and criminal cases Section 1, which provides for Providing a chain of command

2 CRC Special Report on Michigan Constitutional Issues under the Supreme Court has cre- some parts of the state, the divi- arrangement has also compli- ated leadership in the organiza- sion of the courts into different cated administration of the circuit tion and administration of lower types has required probate judges courts by requiring judges to courts and consistent manage- to share time in the circuit courts work with the county clerks’ of- ment of the caseloads assigned to help manage uneven caseloads. fices as they attempt to achieve to judges within each circuit or Authorization for a unified trial efficiencies. While the clerks are district. Occasions have arisen at court would create efficiencies by surely equally interested in all lower court levels where lower allowing trial court judges to hear achieving efficiencies, they are court judges have disagreed with any case regardless of whether it independently elected and may administrative decisions made in currently would be sorted into dis- have separate ideas about how Lansing that have affected the trict, circuit, or probate courts. efficiencies can best be achieved. operations of that court. Simi- Efforts to move toward a unified At no other court level do judges larly, at a time when local gov- trial court in Michigan would be have to work with independently ernments are seeking efficiencies complicated under the present con- elected officials to manage ad- through intergovernmental col- stitution by the varying jurisdictions ministration of the courts. laboration for the joint provision of judges. Counties are often the of services, the need for approval control unit for district courts, but Selection of Justices from court administrators of ac- several of Michigan’s more popu- and Judges tions to consolidate court opera- lated cities bear that responsibility. tions between two jurisdictions Circuit and probate courts are of- The method of selection of Michi- can be viewed as an impediment. ten, but not always coterminous. gan Supreme Court justices, court of appeals judges, and circuit, Such an examination could also Clerk of Circuit Courts probate and district court judges consider the types and responsi- is a question that has persistently bilities of the lower courts. Michi- Section 14 provides that, “The cropped up throughout gan is one of 40 states with an clerk of each county organized for Michigan’s history and undoubt- intermediate appellate court. The judicial purposes or other officer edly would be reopened at a con- court of appeals has lessened the performing the duties of such of- stitutional convention. caseload for the state Supreme fice as provided in a county char- Court, thus allowing that court to ter shall be clerk of the circuit Michigan’s history with judicial concentrate its efforts on issues court for such county….” A con- selection is mixed. The 1835 Con- of highest criminal and civil sig- stitutional convention might find stitution called for the governor to nificance. Also, the states with- this an antiquated arrangement appoint supreme court justices. out intermediate appellate courts reflecting a period when neither The 1850 and 1908 Constitutions tend to be smaller in population, the county clerk’s role related to authorized the election of supreme lessening the value of their com- the county’s operations nor clerk court justices. The 1963 Consti- parison to Michigan. of the courts consumed the tution maintained the election of workload of clerk’s office staff. judges, but called for candidates Not all states have multiple gen- for supreme court justices to be eral trial courts similar to Today this arrangement leaves nominated by political parties. Michigan’s circuit, probate, and the staff members assigned to the district courts.1 Generally, man- courts beholden to two masters: Section 2 provides that “The su- agement of the number of judges the county clerks and the circuit preme court shall consist of seven per circuit or district has allowed court judges attempting to man- justices elected at non-partisan for a fairly equal application of jus- age a caseload. Judges at times elections as provided by law… tice throughout the state, but in find themselves at the mercy of Nominations for justices of the those clerks for court proceed- supreme court shall be in the ings, for the court cannot convene manner prescribed by law.” Cur- 1 Book of the States, 2008, Council of without the clerk to record filings, rent state law provides that nomi- State Governments, Table 5.2. arguments, and testimony. The nations for the office of supreme

3 CRC Special Report on Michigan Constitutional Issues court justice shall be made at the concept of an independent judi- for offices further down the bal- state party conventions held in ciary elected by and responsible to lot. Ballot roll-off is commonly the fall, one candidate for each the people is the main argument attributed to voter fatigue and vacancy to be filled at the next of those that favor judicial elec- voter confusion. Voter fatigue – general election. In addition, tions. Historically, Michigan has when voters tire of the voting pro- Section 2 allows that any incum- shown a strong preference for an cess – occurs most frequently for bent justice may become a can- elective judiciary and the practice offices for which there is little rec- didate for reelection by filing an of filling vacancies by appointment ognition of the office responsibili- affidavit of candidacy. is inconsistent with this tradition. ties and little ability to judge the qualifications of the candidates. Section 8 provides that court of Those favoring an appointment Voter confusion occurs when vot- appeals judges “shall be nomi- process to fill judicial vacancies ers lack full understanding of the nated and elected at non-parti- argue that it improves the qual- voting technology, ballot instruc- san elections from districts drawn ity of judges because a more se- tions, or ballot design. In the 2008 on county lines and as nearly as lective screening process can be general election, more than 5 mil- possible of equal population, as developed and employed. Fur- lion voters participated in the provided by law….” thermore, a short-term appoint- presidential election, but less than ment followed by an election 3.8 million voters participated in Also, circuit court judges (Section gives the electorate the advan- election of Michigan’s Supreme 12) and probate court judges tage of being able to vote for or Court Justice. Almost 25 percent (Section 16) “…shall be nomi- against a judge on the basis of of the voters chose not to exer- nated and elected at non-parti- his record in office. cise the franchise for the state’s san elections in the circuit in highest judicial office.2 The ballot which they reside…” The problem with judicial elections roll-off for court of appeals judges is that, other than in a few high was far greater. The question of the method of profile cases, few people are suf- selection of judicial officers in all ficiently exposed to the judges to At the time Michigan’s Constitu- courts is one of great importance. evaluate their demeanor, judicial tion was adopted in 1963 and for At issue are several fundamental reasoning, or decisions handed many years thereafter, judicial safeguards: (1) an independent down. Those closest to the judi- elections were staid, civil affairs judiciary; (2) accountability to the cial system are the victims of crime that drew little controversy or at- residents of the state; and (3) the or civil action, those accused of tention. In recent years, judicial desire to entrust judicial ques- committing crimes or defendants elections have grown increasingly tions to highly qualified judicial in civil actions, and the lawyers political, controversial, and un- personnel. It is, of course, known that represent those parties. Oth- civil. The campaigns of judicial that either an elective system or ers are left to research judges’ his- candidates, and especially inter- an appointive system can produce tories or select candidates on a est groups, have spent far more some excellent judges and also slate of nominees based on name money campaigning than ever some mediocre or poor judges. recognition. Unlike other political before and efforts to get candi- A constitutional convention would offices, where candidates can dates elected have grown as be left to decide which system is promise action on particular issues negative as other offices for more likely to produce consis- or identify a political bent, judges which politics have historically tently the high quality, impartial are specifically prohibited from played greater roles. judges that are essential to the predetermining how they would proper functioning of our judicial rule on specific matters. system, and who should be 2 charged with evaluating the qual- A commonly observed phenom- Michigan Department of State, Elec- tions Division, http:// ity of the judges. enon in judicial races is “ballot roll- miboecfr.nictusa.com/election/candlist/ off,” where voters cast votes for 08GEN/08GEN_CL.HTM, accessed June The importance of preserving the high profile offices but fail to vote 3, 2010.

4 CRC Special Report on Michigan Constitutional Issues

Options to address the role of Supreme court justices are elected The requirement that vacancies be money in judicial campaigns and for full terms in 22 of the 50 states; filled by elections was short lived. to allow voters to make better-in- and judges of intermediate ap- A 1968 amendment to Section 23 formed decisions include: public peals courts are elected for full authorized the governor to fill ju- financing of judicial campaigns, terms in 19 of the 39 states that dicial vacancies in any court of changing the length of judicial have such courts. Eight of those record or in the district court by terms so that judges won’t have states select supreme court jus- appointment. The governor’s ap- to run for seats on the bench as tices for full terms in partisan elec- pointment power does not extend often, taking greater strides to tions; another 14 states select to newly created judgeships; these make judicial elections truly non- supreme court justices for full posts must be filled by election. partisan, strengthening disclosure terms in non-partisan elections. Furthermore, Section 23 allows a laws so that citizens know who is Michigan and Ohio are the only person appointed to the judgeship contributing to judicial campaigns two states that call on partisan po- to be eligible to run for election to and how much, establishing stan- litical parties to nominate candi- the vacated post with the desig- dards of conduct for campaigns, dates for supreme court justice to nation as an incumbent on the doing more to distribute informa- be elected in non-partisan elec- ballot. Prior to that amendment, tion about the candidates, and tions. Supreme court justices ei- only elected judges benefited from establishing judicial evaluation ther must stand for a retention designation. committees.3 Specific to Michigan, vote or run for reelection in 38 of changes to the Constitution to re- 49 states (in Massachusetts, Su- If a constitutional convention pro- move courts from the process of preme Court and Appeals Court poses changes to the method of redistricting house and senate dis- judges serve until death, resigna- selecting judges, it is likely that a tricts would lessen the political tion, retirement, or removal); and convention also would address the stakes associated with the elec- intermediate appeals court judges method of selecting justices to tion of judicial candidates. (See must go through an elections pro- complete unexpired terms. Alter- CRC Report No. 360-06, Article IV cess in 32 of the 38 states (ex- natives a convention might con- – Legislative Branch.) With less cepting the 11 states without such sider could include: extending the at stake for the political parties, it courts and Massachusetts for the election or appointment of judges is possible that judicial campaigns reason cited above). (See Figure to lifetime terms with vacancies could return to civility and improve 1 on p. 6) filled by elections, requiring the lost confidence in the courts. gubernatorial appointment to Filling Judicial Vacancies come from a list of candidates of- At least some of the judges are fered by a judicial nominating popularly elected in 38 states. The Until 1964, the long-standing committee, or requiring guberna- Book of the States4 reports the practice was to fill judicial vacan- torial appointments to be filled method of selection of judges for cies by gubernatorial appoint- with consent of the senate or the 1) unexpired terms, 2) full terms ment. As adopted, the 1963 Con- other statewide elected officials and 3) the retention of supreme stitution required that all judges (e.g., the secretary of state and court justices and judges of the must be elected to office, thereby attorney general). intermediate appellate courts. removing all appointive powers that existed in the 1908 Consti- Figure 1 (on p. 6) shows that tution. It did, however, permit appointment processes are used the Supreme Court to assign re- to fill unexpired judicial terms in 3 Honorable Dennis Archer, “Perspectives on Michigan Judicial Elections,” keynote tired judges to perform judicial all states where unexpired terms address at Perspectives on Michigan duties for the limited period of are possible for supreme court Judicial Elections symposium, Wayne time from the occurrence of the justices or judges in the interme- State University Law School, January 12, vacancy until the successor was diate appeals (again excepting 2004. elected and qualified. Massachusetts for the reason 4 The Book of the States, 2008. Council cited above). of State Governments.

5 CRC Special Report on Michigan Constitutional Issues

Figure 1 Summary of Selection and Retention of Appellate Court Judges by State Number Method of of States Selection/Retention Supreme Court Method of Selection for Unexpired Term 21 Gubernatorial appointment from judicial nominating commission 13 Gubernatorial appointment 8 Gubernatorial appointment from judicial nominating commission with consent of legislature 3 Gubernatorial appointment with consent of legislature 2 Court selection 1 Gubernatorial appointment with approval of elected executive council 1 Legislative appointment Method of Selection for Full Term 14 Non-partisan election 8 Partisan election 14 Gubernatorial appointment from judicial nominating commission 7 Gubernatorial appointment from judicial nominating commission with consent of legislature 2 Gubernatorial appointment with consent of legislature 2 Legislative appointment 1 Gubernatorial appointment 1 Gubernatorial appointment with approval of elected executive council 1 Gubernatorial appointment from judicial nominating commission with approval of elected executive council Method of Retention 19 Retention election 14 Non-partisan election 5 Partisan election 3 Gubernatorial appointment from judicial nominating commission with consent of legislature 3 Legislative appointment 2 Gubernatorial appointment with consent of legislature 1 Judicial Nominating Commission appointment Intermediate Court of Appeals Method of Selection for Unexpired Term 17 Gubernatorial appointment from judicial nominating commission 12 Gubernatorial appointment 4 Gubernatorial appointment from judicial nominating commission with consent of legislature 2 Court of last resort appointment 2 Gubernatorial appointment with consent of legislature 1 Legislative appointment Method of Selection for Full Term 12 Gubernatorial appointment from judicial nominating commission 11 Non-partisan election 7 Partisan election 4 Gubernatorial appointment from judicial nominating commission with consent of legislature 2 Legislative appointment 1 Gubernatorial Appointment 1 Gubernatorial appointment with consent of legislature 1 Gubernatorial appointment from judicial nominating commission with approval of elected executive council Method of Retention 17 Retention election 11 Non-partisan election 4 Partisan election 2 Gubernatorial appointment from judicial nominating commission with consent of legislature 2 Legislative appointment 1 Judicial Nominating Commission appointment 1 Gubernatorial appointment with consent of legislature Source: Book of the States, 2008, Council of State Governments, Table 5.6, pp. 286-88.

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Recusal of Justices contained in the 1850 and 1908 1961 Constitutional Convention, state Constitutions. While the the matter may be worthy of re- A constitutional convention also provision appears to be straight- consideration. may wish to address an issue that forward, it poses two issues that has created controversy within the a constitutional convention might State Funding of Trial court recently. Judicial ethics re- want to visit. First, there is as a Courts quire judges to recuse themselves practical matter no bright line to from cases when there exists a distinguish questions of practice While streamlining the court sys- possible conflict of interest or preju- and procedure on the one hand tem to create “one court of jus- dice. In trial courts, such actions from questions of substantive law tice,” neither the constitutional would cause cases to transfer to on the other. (For example, what convention nor the legislation another trial court judge. In the evidence may be admissible at drafted to implement the consti- court of appeals, a recusal would trial and under what circum- tutional provisions addressed the cause assignment of that case to stances may be viewed as a mat- need for a unified system of court another appeals court judge. In ter of practice and procedure, but finance. As discussed above, all the case of the Supreme Court, the also may have a direct impact of the trial courts are organized recusal of a single judge would upon the substance of legal re- under the direction of the state leave only six justices and the po- course.) Second, the Michigan Supreme Court and are subject tential of an inability to establish a Supreme Court has taken the to rules and must follow operat- majority to decide the case. position since 1959 that when ing procedures established by the there is a conflict concerning state Supreme Court. However, In response to these circum- practice and procedure between the court organization created stances, a constitutional conven- one of its rules and a statute, the under the 1963 Constitution re- tion might wish to consider op- former prevails. lies upon the local governments tions for cases when a justice is to serve as the funding units for unavailable to hear a case. One In effect, the Michigan Supreme the trial courts. The county gov- alternative would emulate the Court has claimed the authority ernments, alone or in tandem, are practice in Ohio. Section 4.02 of to strike down a statute adopted the funding units responsible for the Ohio Constitution provides in by the legislature, not through the funding the circuit and probate relevant part, customary means of declaring it courts. Counties and several of unconstitutional in the context of the larger cities serve as the “dis- If any member of the court a particular lawsuit, but simply by trict control unit(s)” responsible shall be unable, by reason finding that statute to be in con- for funding district courts. of illness, disability or dis- flict with a court rule governing qualification, to hear, con- As funding units, the counties and sider and decide a cause or practice or procedure. Under municipalities must perform care- causes, the chief justice or such a circumstance, there would the acting chief justice may be no practical recourse since the ful balancing acts with the trial direct any judge of any court final authority to interpret and fix courts to provide needed fund- of appeals to sit with the the meaning of the state Consti- ing without intruding into the af- judges of the supreme court tution rests with the Michigan fairs of the courts. Every year in the place and stead of the Supreme Court. the chief judge in each court must absent judge. submit a proposed budget to the A constitutional convention county(s) or municipality respon- Court Rulemaking might wish to provide that a stat- sible for court funding. Gener- ute would prevail over any con- ally the courts and funding gov- Section 5 empowers the Supreme flicting court rule, irrespective of ernments are able to work Court to “establish, modify, the subject matter involved. together to agree on budgets that amend and simplify the practice While such an approach was pro- the governmental bodies can af- and procedure in all courts of this posed but not adopted at the ford and that will meet the needs state….” Similar provisions were

7 CRC Special Report on Michigan Constitutional Issues of the courts. However, the sepa- Over time, there has been some While the state met its funding ration of powers provisions in the recognition by the state legisla- obligations for the Detroit and constitution prevents the counties ture that the state should bear Wayne County courts, sufficient and cities from having any real the responsibility for funding the funds were never provided to controlling powers over the man- “one court of justice.” The first fund court operations in the other agement or operations of the movement in this direction was 82 counties. courts when conflicts arise. necessitated by the financial dif- ficulties of the City of Detroit and Public Act 189 of 1993 created Any conflicts are taken to arbitra- Wayne County in the early 1980s. new sources of funding for court tion before the State Court Admin- In 1981, the state assumed fund- operations by restructuring and istrative Office or are brought to ing responsibility for the 3rd Cir- increasing certain court fees. suit before courts of higher juris- cuit Court in Wayne County, Funds from those fees were ear- diction. One of the most signifi- Detroit’s Recorder’s Court, and marked to a newly created State cant cases to be decided on court Detroit’s 36th District Court. Pur- Court Fund, which allocated fund- funding, Wayne Circuit Judges v suant to Public Act 438 of 1980, ing to trial court funding units Wayne County, 386 Mich 1 (1971), this state action was to be the pursuant to a formula based on found that the judiciary possesses first phase of a state reorganiza- the state’s paying a percentage an inherent power to determine tion that would ultimately result of trial court costs. Some court and compel payment of those in full state funding for the trial funding units benefited from this sums of money which are reason- courts. Act 438 laid out a six- allocation, others did not. Again, able and necessary to carry out year timetable for the state to the state was not able to provide its mandated responsibilities. fund trial court operational ex- sufficient resources to fully fund penses on a statewide basis. court operations statewide.

Table 1 Michigan’s Trial Court System Costs and Sources of Funding

FY2008 FY1993 Amount Percent Amount Percent Costs by Court Level Circuit Court $ 888.3 61.1% $ 135.6 24.3% Friend of the Court $ 162.6 11.2% $ 80.4 14.4% Probate Court $ 63.5 4.4% $ 176.0 31.5% District Court $ 339.7 23.4% $ 185.8 33.3% $1,454.1 $ 577.9 Sources of Funding State Funding $ 333.8 23.0% $ 109.1 18.9% Federal Funding $ 106.1 7.3% $ 64.1 11.1% Revenue Collections $ 252.0 17.3% $ 178.0 30.8% Calculated Local Contribution* $ 762.2 52.4% $ 226.7 39.2% * Local court contribution includes in part a shift in funding to the court from other federal, state and county funded juvenile programs. Source: PowerPoint presentation Court Structure and Resources, by Dawn Monk, Deputy State Court Administrator and Rebecca Mack, State Court Administrative Office Financial Analyst, February 9, 2010 [percentages CRC calculation].

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The legislature again attempted Judicial Tenure Commission ful conduct that would warrant to restructure the court system removal from the bench, Section and provide equitable state fund- When the 1963 Constitution was 30 recognizes that different lev- ing of trial courts in 1996. adopted, judges could be re- els of discipline are warranted for Detroit’s Recorder’s Court was moved from the bench in only two different degrees of misconduct folded into Wayne County’s 3rd ways: by impeachment, which and that sometimes it is neces- Circuit Court. The 3rd Circuit can be used in the case of any sary to remove a judge for health Court and the 36th District Court civil officers; and by direct legis- or other reasons that should not no longer received special fund- lative action pursuant to the denote misconduct. ing. New funds were established adoption of a concurrent resolu- to provide operational funding to tion approved by two-thirds of the The first issue a constitutional trial courts statewide. members in each house. The lat- convention might chose to ad- ter provision was added by the dress is the seemingly contradic- Even with state funding that has drafters of the 1963 Constitution tory provision related to removal grown substantially, locally-raised because impeachment was seen of judges. The 1968 amendment revenues are needed to fund trial as a tool that could be used only added Section 30 to create the court operations. Data from the in narrow circumstances for re- JTC and stipulated the conditions State Court Administrative Office moval, i.e., instances of corrupt under which judges may be cen- shows that the cost of Michigan’s conduct in office and for crimes sured, suspended, retired, or re- trial court system increased from or misdemeanors. moved, but it did nothing to $577.9 million in 1993 to $1,454.1 amend or delete the last sentence million in 2008, a 161 percent The first successful amendment of Section 4, which says, “The growth over 15 years. Table 1 to the 1963 Constitution, and sec- supreme court shall not have the (on p. 8) shows the sources of ond proposed amendment, was power to remove a judge.” the revenues used to finance the a legislatively-initiated proposal in trial court system. 1968 to create a Judicial Tenure Second, a constitutional conven- Commission (JTC). The JTC tion could be expected to exam- A constitutional convention may serves as an investigatory body, ine the need for the JTC and con- wish to examine whether the investigating complaints about stitutional provisions for the JTC’s “one court of justice” policy the conduct of judges and sub- operational process. It may wish should be extended to funding of mitting recommendations based to alter the openness of the pro- the court system. A state funded on investigations of those com- cess and the reasons for which court system would give the Su- plaints to the Supreme Court for action may be initiated. It may preme Court and court disciplinary action. Section 30 wish to consider membership on administrator’s office greater lati- authorizes the Supreme Court to the commission to include more tude to achieve efficiencies by censure, suspend with or without members not closely tied to the consolidating courts and enable salary, retire or remove a judge judicial system or legal profession. creation of a unified trial court for any of the following causes: system in parts of the state where conviction of a felony; physical or According to the Judicial Tenure it could operate best. It would mental disability which prevents Commission website, the JTC allow for better management of the performance of judicial du- concluded 581 cases in 2009. In caseloads across the state, result- ties; misconduct in office; persis- 442 (76.1 percent) of those ing in an equal application of jus- tent failure to perform judicial cases, an investigation to evalu- tice regardless of location. It duties; habitual intemperance; ate the complaint did not produce would make all court staffs em- and conduct that is clearly preju- a sufficient showing of miscon- ployees of the state and would dicial to the administration of jus- duct. Another 25 cases (4.3 per- standardize compensation in tice. Unlike the provisions that cent) were settled with admoni- terms of payrolls, pensions, and existed prior to the 1968 amend- tory, cautionary, and explanatory benefits. ment that recognized only wrong- letters, meaning that the judge was warned about his or her con-

9 CRC Special Report on Michigan Constitutional Issues duct but the complaint and JTC and file charges with the states’ dentiality serves to keep the in- actions were not made public. supreme courts for adjudication. vestigations of allegations of mis- Others were dismissed because Seventeen states do not provide conduct from becoming fodder of the lack of jurisdiction, lack of any mechanism to ensure the for political posturing. merit, or for other reasons. Only process works.6 1 cases (0.2 percent) rose to the The Council of State Govern- level of public censure, which Section 30 currently provides, ments also reported on the point meant that the matter rose to the “The supreme court shall make at which reprimands of members level of receiving attention by the rules implementing this section of the judiciary are made public. Supreme Court.5 and providing for the confidenti- Only Washington conducts a ality and privilege of proceed- completely open process, with all According to the Council of State ings.” The 1968 constitutional records and proceedings open Governments, states generally fall amendment that established the from the beginning of fact find- into two camps on adjudicating JTC purposefully created a sys- ing hearings by the Commission complaints against judges. The tem of confidentiality of investi- on Judicial Conduct. Thirty-two laws of 18 states and the District gations to serve as a protection states, including Michigan, make of Columbia empower the same to judges against malicious and the process known to the public body charged with investigating unfounded charges. Although the only when the investigating body complaints against judges to also public desires judges to be fair decides that it has sufficient evi- adjudicate the charges that may and impartial, their public stand- dence to warrant filing charges be warranted after investigation ing and requirements to stand for with the adjudicating body. An- of the complaints. Those deci- election inherently make them other 11 states announce findings sions are then subject to appeal political beings. As such, they are to the public when a decision has to another body, usually the subject to acrimony both by dis- been adjudicated. The final states’ supreme courts. In 24 contented citizens and by politi- states make the findings public states, including Michigan, the cal opponents wishing to unseat only after the appeals process has investigating body must prepare them from their positions on the been exhausted.7 bench. Creating a level of confi-

5 Judicial Tenure Commission website, http://jtc.courts.mi.gov/ statsbudget.htm, accessed June 8, 6 The Book of the States, 2008, Council 7 The Book of the States, 2008. Council 2010. of State Governments, pp. 294-6. of State Governments, pp. 294-5.

Conclusion

Unlike other articles in the 1963 years. The increasingly political burden on the local governments Constitution, Article VI does not and tainted campaigns for Su- – counties and cities – charged include provisions that have been preme Court justices may dimin- with funding responsibility. A ruled unconstitutional or inoper- ish the perception of an indepen- unified state funding system to able. The judicial system is op- dent, impartial judiciary capable parallel the “one court of justice” erating adequately and can con- of dispensing justice to all. Con- established by the 1963 Consti- tinue into the future with the tinuance of this trend may cre- tution would alleviate the man- current constitutional provisions ate a rallying call to reform the dated costs that those govern- without pause. However, some methods of selecting judges. The ments must bear and enable the of the issues critics identify in cost of operating Michigan’s trial court system to achieve efficien- Article VI may rise to higher lev- court system has increased at a cies in operations that are other- els of importance in coming pace that imposes tremendous wise unobtainable.

10 CRC Special Report Michigan Constitutional Issues

No. 360-10 A publication of the Citizens Research Council of Michigan July 2010 Tenth in a series of papers about state constitutional issues ARTICLE VII – LOCAL GOVERNMENT

In Brief

In addition to providing authority and power to the three branches of state government, the Michigan Constitution authorizes and empowers local governments. For counties and townships, the constitutional provisions describe their structure and powers. For cities and villages (and to a lesser extent charter counties), the constitution authorizes home rule provisions for their own self governance. A constitutional convention might be expected to examine the structure of local government in Michigan, the strength of home rule that should be authorized, the use of metropolitan government, and the removal of elected officials.

Local government finance will be discussed in context of our analysis of Article IX – Finance and Taxation.

Introduction

Thus far, CRC’s series of papers analyzing constitu- ganization was established in the Northwest Ordi- tional issues has focused on citizens’ rights, the elec- nance of 1787, and was institutionalized in the 1835, torate, and the three branches of government. This 1850, 1908, and 1963 Constitutions. The 1963 Con- paper focuses on public corporations, which are or- stitution made relatively few changes in the basic ganizational structures that may be vested with con- structure of local government. The system of local stitutional status. Public corporations may be di- government in Michigan is composed of counties, vided into two categories: (1) municipal corporations townships, cities, villages, and special districts. The and other local governmental units including coun- number of local units in Michigan has changed rela- ties, townships, and metropolitan districts and (2) tively little since the 1963 Constitution was adopted. public corporations organized for specific purposes, such as the state universities. While both types of General-purpose local units of government—coun- public corporations are of constitutional concern, this ties, cities, villages, and townships—provide a broad paper is confined to the questions respecting the range of services. The entire state is organized into constitutional position and authority of municipal counties and each citizen lives in one county. The corporations—including the important question of entire state is also organized into cities and town- home rule status. ships and each citizen lives in either a city or a township, but not in both – they do not overlap. A town- Local Government Structure in Michigan ship resident might also live in a village, which has its own government, but also remains part of the Much of Michigan’s system of local government or- township.

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

Counties were originally organized The different authorizing laws and these authorities overlaps existing to serve as administrative arms of the exercise of home rule make boundaries of other general-pur- state government, providing local an all inclusive list of services propose or special-purpose units. services and maintaining records. vided by cities, villages, and Some of the more common pur- In that capacity, they are respon- townships in Michigan difficult to poses for special authorities in- sible for recording births, mar- assemble. Cities and townships clude fire protection, libraries, riages, and deaths; recording the are universally responsible for 1) mass transportation, airports, solid ownership of real property; pro- property assessment as a basis waste, and water and sewer. viding police protection; and pros- of state, county, municipal, and ecuting those accused of criminal school taxation; 2) tax collection The most significant qualitative activities. Counties also bear some for their own purposes and on change over the past four decades responsibility for the courts; jails; behalf of the state, counties, and has been a blurring of the differ- oversight of property assessing and schools; and 3) the conduct of ences between cities, villages, and elections administration; construc- municipal, school, county, state, townships. Additional powers have tion of some roads and bridges; and national elections. Addition- been granted to villages and town- provision and maintenance of ally, cities are required to provide ships, consistent with those pos- drains; and health services. Some for the public peace and health sessed by cities. State mandates counties provide local government and for the safety of persons and for particular types of local govern- services in addition to those per- property within their jurisdictions. ments to provide specific services formed for the state, including Commonly provided local govern- have been eroded. The ability of parks, airports, libraries, public ment services include police and cities and villages to annex town- transportation, and refuse disposal. fire protection, water and sewer- ship land has been diluted. Today, age, parks and recreation, refuse Michigan’s urban areas have a Townships and some villages are collection, roads and sidewalks, number of villages and charter organized under general state libraries, streetscapes, and eco- townships intermingled among the laws that prescribe their govern- nomic development. state’s biggest cities. mental structure and powers. Cities and some villages have Special authorities are limited-pur- The primary cause of these created their own charters un- pose governments that exist as changes was enactment of the der home rule powers that allow separate corporate entities cre- charter township act. Although each government’s local popu- ated for the purpose of combin- enacted in 1947, it was not until lace to frame its own charter, ing local government resources to the late 1960s and 1970s that determine how best to secure achieve a common goal desired by townships began adopting charter representation on the city coun- each of the involved local govern- status in large numbers. Charter cil, provide its own means for ments. State law provides for the township status has allowed town- selecting the mayor and the ad- creation of special authorities and ships in urban areas to provide a ministrators of the city activities, for their organization, powers, and full range of municipal services, define the powers that might be duties and provides substantial fis- paralleling those provided by neigh- exercised, adopt nonpartisan at- cal and administrative indepen- boring cities in every way except large elections if it wished, and dence from general-purpose units maintenance of roads and bridges. establish its own accounting and and other special-purpose local In 2000, 15 of the 50 most popu- auditing controls. governments. The jurisdiction of lated local governments in Michi- gan were charter townships.

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The only noteworthy quantitative the number of townships reflects incorporation of Grosse Pointe change in the number of local their incorporation as cities, Shores as a city eliminated two governments over the past 45 mostly in the 1960s. More re- townships because the former years has been in the number of cently, the transformation of the village straddles Macomb and special authorities that are cre- villages of Clarkston and Chelsea Wayne counties. There was a net ated when local governments to cities shrank the size of the increase of only seven general- collaborate for the provision of surrounding townships, but did purpose local units between 1962 services. The modest decline in not eliminate the townships. The and 2010. (See Table 1.)

Table 1 Number of Units of Local Government in Michigan

1962 2007 Change Counties 83 83 -0- Townships 1,259 1,240 - 19 Cities & Villages 509 535 + 26 Sub-Total 1,851 1,858 + 7 Special Authorities 99 456 +357

Source: 1962 and 2007 Census of Governments, Bureau of the Census, U.S. Department of Commerce.

1 Most of the general purpose lo- cent) serve less than 2,500 elected officials. (See Table 2.) cal units serve relatively small people, and 469 (25 percent) of populations. Only 128 (7 per- these serve less than 1,000 1 See The Long Ballot in Michigan, Citi- cent) of the 1,858 general pur- people. These 1,858 general pur- zens Research Council of Michigan, Council Comments 951, November 1984, pose governments serve 25,000 pose local units have an estimated total of more than 18,000 www.crcmich.org/PUBLICAT/1980s/ or more people; 1,070 (58 per- 1984/cc0951.pdf.

Table 2 Governmental Units in Michigan by Population Groups, 2000

Counties Cities/Villages Townships Total Population Groups Number Percent Number Percent Number Percent Number Percent 100,000 and over 20 24.1% 8 1.5% 0 0.0% 28 1.5% 25,000 - 99,999 38 45.8% 37 6.9% 25 2.0% 100 5.4% 2,500 - 24,999 24 28.9% 178 33.3% 458 36.9% 660 35.5% Less than 2,500 1 1.2% 312 58.3% 757 61.0% 1,070 57.6% Total 83 535 1,240 1,858 Source: 2000 Census, Bureau of the Census, U.S. Department of Commerce.

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Constitutional Issues

Article VII contains 34 sections: stitutional convention might seek many of Michigan’s least popu- 16 deal with county government; to “reinvent” local government. lated, most rural townships would four with township government; exist solely to define the location six with cities and villages; and Arguments have been made that of property within each county and two with metropolitan govern- the local government structure for planning and zoning purposes. ment or joint administration. Six needs to be reorganized to de- The levy of taxes would then re- sections cover more than one fine the power and authority relate to each township’s decision type of local government. Other lationships between counties and to provide other services (police provisions that affect local gov- municipalities in both service de- and fire protection, refuse collec- ernment are scattered through- livery and regulatory functions. A tion/disposal, etc.). out the Constitution. Of the 80 simplified local government struc- proposed constitutional amend- ture could include a municipal These types of structural reforms ments that have been submitted level of government consisting of of local government are likely to to the voters since 1963, none two classes of municipalities, occur only through a constitutional have dealt with the local govern- charter cities and townships, convention. Neither petition-initi- ment article of the Constitution. equal in their relationship to each ated constitutional amendments other and other levels of govern- nor legislatively-initiated reforms Local Government Structure ment. This new framework of seem capable of achieving such municipal government would wholesale change. A constitutional convention could eliminate the intermediate form examine the extent to which the of government, the village. Reforms of this type could simplify present organizational structure of local government, but caution local government meets the cur- Other reforms might focus on the should be exercised about their rent and future needs of citizens roles played by counties and potential for “fixing” local govern- and businesses. While business townships. Convention delegates ment. It is not clear that the po- location decisions in the past may might focus on the problems in- tential gain of business attraction have focused on Detroit or South- herent in attempting to solve lo- that might come with governmen- field, Grand Rapids or Walker, or cal or regional problems at the tal consolidations, and the result- Traverse City or Charlevoix, busi- state level. Advocates of change ing larger local governments with nesses today compete on a glo- might focus on the perceived more bureaucracy, would be worth bal stage and could just as easily shortcomings of the state govern- the surrender of local political con- locate in India, Brazil, South Caro- ment and propose either to trol and the connection many feel lina, or Michigan. strengthen counties to usurp with small government. The sav- some responsibilities currently ings that may result from these A constitutional convention could vested with the state or to create potential reforms are rather insig- examine the need for 1,858 local regional governance structures nificant in the big picture of units of government, two-thirds of with taxing and spending powers. Michigan’s government finances. which serve fewer then 2,500 The cost of operating villages and people. It might consider whether Some may focus on activities that less populated townships, or the counties, townships, cities and vil- are provided at the most local lev- cost of a few activities that could lages, and special authority dis- els in Michigan, but are provided be better provided by counties, tricts, with overlapping geographi- at the county level in most other pale in comparison to the cost cal boundaries, as well as states – elections, property as- Michigan’s urban cities incur to overlapping powers and service sessment, and tax collection. provide public safety, water and responsibilities, are the most ef- Should a constitutional convention sewer, and other municipal ser- fective means of providing local choose to reform local govern- vices. The reforms that would services and the most efficient use ment by charging counties with help city governments to attract of scarce public resources. A con- responsibility for these services, and retain people and businesses 4 CRC Special Report on Michigan Constitutional Issues generally are not matters that of a supervisor representing a The loss of the county boards of should be addressed by a consti- township with a population of supervisors created a void. Be- tutional convention. 1,000 was equal to the vote of a cause members of the boards of supervisor from a township of supervisors represented local County Officers 10,000; and the number of people governments, the county board represented by members of the meetings routinely brought to- Board of Supervisors boards from cities could be wholly gether local government officials States have considerable discre- different. In 1966, the Michigan with the opportunity to discuss tion in drafting the fundamental Supreme Court held that the service provision. Appointed and laws that govern their operations method of apportioning county independently elected county of- and that affords rights to their citi- boards of supervisors violated the ficials heard from the supervisors zens. State constitutions, how- Equal Protection Clause of the about the need for an expanded ever, are bound by the parameters Fourteenth Amendment to the county role, the services that lo- of the United States Constitution United States Constitution.3 cal units were providing ad- and may not violate the provisions equately, and the services for contained in that document. State As a result of the U.S. Supreme which local governments would constitutional provisions that are Court’s one person-one vote de- benefit from county cooperation. obsolete because they violate the cisions, boards of supervisors The move to independently provisions of the federal constitu- were replaced with county boards elected county commissioners tion make the language of a state of commissioners that are smaller, reduced counties’ connection to constitution confusing and mis- more partisan, and representative local units. Where supervisors leading. These provisions should of people rather than units of gov- were inherently prepared to ad- be removed or revised to reflect ernment. County commission dress the needs of the local gov- the current status of law. election districts are drawn to be ernments they represented, as nearly equal in population as county commissioners tend to be The provisions in Section 7 that is practicable based on the latest aware of the needs of the local establish county boards of super- official published decennial U.S. governments only when they visors are not consistent with the census. They are to be contigu- make special efforts to learn of federal constitution. The county ous, compact, of as nearly square those needs. boards of supervisors in each shape as is possible. Finally, they county were to consist of one must respect township, village, At a minimum, a constitutional member from each organized and city boundaries, and are not convention could be expected to township and representation from to be drawn to effect partisan po- bring Article VII into compliance cities as provided by law. Like the litical advantage. with current day practice in the legislative redistricting provisions in selection of cou.nty commission- Article IV, this language was drafted The number of general law ers. Beyond that, a convention at the same time precedent-setting county commissioners is based on may seek to create a structure legal cases were being decided by the population of the county as that reconnects counties with the the U.S. Supreme Court establish- defined in statute: local governments so that activi- County Number of ties are performed in the most ing the “one person, one vote” prin- Population Commissioners 2 ciple. With equal representation Under 5,001 Not more than 7 efficient manner and intergovern- granted to all townships, the vote 5,001 to 10,000 Not more than 10 mental collaboration – arguably 100,001 to 50,000 Not more than 15 a principal function of counties – 50,001 to 600,000 Not more than 21 is facilitated to a greater extent over 600,000 25 to 35 than is currently the practice. 2 See Article IV – Legislative Branch, Citizens Research Council of Michigan, County Administration Report 360-07, May 2010, 3 Advisory Opinion re Constitutionality Of all the types of local govern- www.crcmich.org/PUBLICAT/2010s/ of Public Act 261 of 1966, (380 Mich 736; 2010/rpt36007.html. 1966). ments in Michigan, not one oper-

5 CRC Special Report on Michigan Constitutional Issues ates under a more antiquated antiquated form of local govern- a single executive officer with structure than the counties. Four ment by authorizing charter, or control over administration of the counties have taken advantage of home rule, counties. It was hoped county, and a lack of budgetary alternative organizational struc- that home rule powers would pro- control by the county commis- tures available to all counties, but vide counties with the ability to sions, complicates the ability to the other 79 counties operate streamline county government manage the counties’ assets and without a single executive officer and minimize the number of operate within the resources to lead the government. County boards, commissions, and authori- available. commissions share legislative and ties common in the administration administrative duties and power of county government. Counties A constitutional convention could is further disbursed among the now have two organizational al- reexamine the constitutional pro- many independently elected con- ternatives to the general form: visions for county government to stitutional officers: prosecuting optional unified county govern- allow greater flexibility to change attorney, clerk, register of deeds, ment or charter county govern- officers from elected to appointed treasurer, and sheriff. Power is ment. The optional unified form status, reorganize administration further disbursed to the drain provides for an elected or ap- of the county, and effect the commissioner and the boards of pointed county executive and changes needed to bring county county road commissioners. some power to reorganize the government into the twenty-first departmental structure, but in the century. Notwithstanding the change from main the core powers of the county boards of supervisors to boards of commissioners, as well Home Rule boards of commissioners, this as the “row” officers, are undis- basic structure has existed since turbed. Under the charter county The state constitution defines the statehood in the 1830s. It reform, the powers of a county ex- legal relationship between the flects the counties’ role as admin- ecutive are somewhat stronger state and local governments. It istrative arms of the state and the and the options for reorganization establishes the relative degree to principle of Jacksonian democ- a little greater than under the which local governments are de- racy, the early to mid-19th cen- other forms. However, the re- pendent on, or independent from, tury political theory that held that quirement in Section 4 that each state control. The dichotomy the problem with government county independently elects a between state control and local was the appointive status of gov- sheriff, clerk, treasurer, register of self government is illustrated by ernment officials. The cure pro- deeds, and prosecuting attorney Dillon’s Rule and the Cooley Doc- posed was to have as many offi- cannot be undone by statute. trine. The theory of state pre- cials as possible elected directly eminence over local governments to short (two-year) terms. This In some counties, the broad dis- was expressed as Dillon’s Rule in approach, which would theoreti- tribution of power among many an 1868 case: cally keep democracy close to the officials has created deadlocks in Municipal corporations owe people, reflected the the budgeting processes. Each their origin to, and derive frontiersman’s belief in personal elected officer is the administra- their powers and rights versatility and his suspicion of tive head of a department, and wholly from, the legislature. specialization. Government was even in those counties with It breathes into them the not believed to require specialized elected county executives power breath of life, without which skills or training. It was hoped is not sufficiently centralized for they cannot exist. As it cre- that the fragmentation of power that person to assume control of ates, so may it destroy. If it and frequent turnover of officials hiring and firing personnel or ar- may destroy, it may abridge 4 would prevent the formation of a ranging the organization of those and control. government aristocracy. departments. At times of economic contraction, when many 4 Clinton v Cedar Rapids and the Mis- The 1963 Constitution attempted local governments are cutting the souri River Railroad, (24 Iowa 455; to provide an alternative to this size of their budgets, the lack of 1868). 6 CRC Special Report on Michigan Constitutional Issues

In contrast to Dillon’s Rule, the have adopted home rule charters. gree counties. Over the century Cooley Doctrine expressed the Townships do not have home rule that Michigan has experimented theory of an inherent right to lo- powers. with home rule, it is not clear that cal self determination. In a con- everyone has held home rule in curring opinion, Michigan Su- During the Progressive Era (1890 the same regard. For while the preme Court Judge Thomas – 1920), when Michigan initially constitution, as the supreme law Cooley in 1871 stated: “[L]ocal adopted its home rule provisions, of the state, provided broad home government is a matter of abso- the goal was to give local gov- rule authority to local govern- lute right; and the state cannot ernments a broad range of local ments, various actions by the leg- take it away.”5 discretion to act and adopt poli- islature and the courts have cies with minimal direction, influ- weakened it. The continuing tension between ence, and interference from state Dillon’s Rule and the Cooley Doc- officials. Prior to that time, an The underlying tension comes in trine is the attempt to balance excessive amount of legislative determining whether matters are matters of statewide interest action was focused on the enact- of statewide interest, and there- against the rights of communities ment of local acts, at times fore should be addressed by state to determine their own govern- micromanaging the affairs of lo- laws and administrative rules, or ment. Through a state constitu- cal governments. It was rea- matters of local concern that each tion, the people can establish the soned that better governance community should be free to ad- structure of local government and could result if the local populaces dress in ways that reflect the val- the distribution and balance of could frame their own charters, ues of their citizens. While the powers between the state gov- determine how best to secure Constitution provides for a liberal ernment and local governments. representation on their city coun- interpretation of the powers of cils, provide their own means for municipalities, and some court The last two constitutions cast selecting mayors and administra- opinions have declared that mu- Michigan as a strong home rule tors of the city activities, define nicipalities have all powers not state, consistent with the Cooley the powers that might be exer- expressly denied, other court rul- Doctrine. The Michigan Consti- cised, and establish their own fi- ings adverse to home rule often tution of 1908 provided home rule nancial controls. Not only was it have led municipal officials to for cities and villages. The 1963 hoped that home rule would seek legislative solutions clarify- Constitution built on that author- cause local officials to be respon- ing the extent of their authority. ity for cities and villages and ex- sible, but it was hoped that home Each directive and clarification tended the option of home rule rule would cause local govern- that has been amended to the to counties. The Michigan Con- ment to be more responsive to Home Rule Cities Act and Home stitution is one of 37 state con- the needs and wants expressed Rule Villages Act has had the gen- stitutions that provide home rule by local residents. eral impact of reversing the in- for cities and one of 23 state con- clusive nature of the home rule stitutions that give home rule The question of continuing home powers toward an exclusionary powers to counties. Home rule rule for Michigan’s local govern- approach.6 is almost universally employed to ments and determining the rela- adopt city charters, but only a tive home rule powers may be There are several examples of con- minority of villages have adopted one of the most monumental is- stitutional home rule powers that home rule charters. Macomb and sues that a constitutional conven- were lessened through legislation, Wayne are the only counties that tion would confront. The conven- administrative rules, and court tion delegates that drafted the 1908 and 1963 Constitutions clearly favored home rule and 6 Kenneth VerBurg, A Study of the Legal provided broad powers for cities Powers of Michigan Local Governments: 5 People v Hurlbut, (24 Mich 44, 95; and villages, and to a lesser de- Comparing Cities, Townships, and Char- 1871). ter Townships, (1960).

7 CRC Special Report on Michigan Constitutional Issues cases. Section 2 extended the make laws or adopt regula- overriding the city’s ability to im- authority for counties to adopt a tions of government; they pose a living wage ordinance.9 charter, but court rulings restricted are governments of enu- such a charter from infringing on merated powers, acting by The final section of Article VII, the powers or method of selection a delegated authority; so Section 34 was included to make that while the State legisla- of executive county officers. clear the intent of the convention ture may exercise such pow- delegates that the provisions of ers of government coming Constitutional convention del- within a power designation the constitution and laws con- egates sought to ease the burden of legislative power as are cerning counties, townships, cit- on the property tax and to pro- not expressly or impliedly ies, and villages are to be con- vide additional revenues to local prohibited, the local authori- strued liberally in their favor and governments. Section 21 provides ties can exercise those only that the powers granted to coun- that, “Each city and village is which are expressly or im- ties and townships by the consti- granted power to levy other taxes pliedly conferred, and sub- tution and by law are to include for public purposes, subject to ject to such regulations or those fairly implied and not pro- limitations and prohibitions pro- restrictions as are annexed hibited by the constitution. 7 vided by this constitution or by to the grant. This section was added by the law.” However, this constitutional Attempts to legislatively intrude 1963 Constitution. Prior its addi- taxing authority was immediately on home rule powers and court tion, laws concerning the powers preempted by legislation prohib- decisions to undo the exercise of of counties and townships were iting any local non-property tax those powers are found with re- written with specificity. In the unless it is specifically authorized gard to spending power, public by state statute. years since, such laws have be- meetings, public access to pub- come briefer and have been writ- Section 22 extends home rule lic records, conflicts of interest by ten to liberally grant powers to powers to municipal government: public officials, political rights of those types of governments. In public employees, mandatory col- that regard, this provision can be Each such city and village lective bargaining and compul- seen as a success. shall have power to adopt sory arbitration of police and fire resolutions and ordinances labor disputes. As the state’s larg- On the other hand, the evidence relating to its municipal con- est city, Detroit has been a fre- of diminishing home rule powers cerns, property and govern- quent target of both legislative for cities and villages seem to in- ment, subject to the consti- action, including statutory at- dicate that Section 34 has held tution and law. No tempts to cause change to the enumeration of powers little sway in deciding inconsisten- method of selecting Detroit city granted to cities and villages cies between state laws and lo- 8 in this constitution shall limit council members, and judicial cally expressed powers in favor or restrict the general grant decisions, such as a recent ruling of the local governments. of authority conferred by this section. The home rule powers laid out in the Constitution indicate that But the courts have remained Michigan is a strong home rule closer to Dillon’s Rule, taking the state, but in practice Michigan position that local governments cities and villages have far less derive their authority from the 7 City of Kalamazoo v Titus, 208 Mich. legislature. Contrary to the broad 252, 262, 175 N.W. 480 (1919). grant of authority, the courts have 8 See Election of Detroit City Council stated that: Members, Citizens Research Council of 9 See Richard Rudolph V Guardian Pro- Michigan, Memo #1063, regarding Pub- tective Services, Inc., http:// lic Act 432 of 2002, www.crcmich.org/ [L]ocal governments have coa.courts.mi.gov/resources/asp/View PUBLICAT/2000s/2002/ Docket.asp?casenumber=279433& no inherent jurisdiction to memo1063.html. yr=0&inqtype=public.

8 CRC Special Report on Michigan Constitutional Issues home rule discretion than local Constitution. Neither Section 29 sale rehabilitation of a four-mile governments in states such as nor its predecessor (Section 28 stretch of roadway in 1999, the Illinois and Colorado. In each of of Article VIII in the 1908 Consti- City of Taylor (Wayne County) those states, within the scope of tution) attempted to extend to acted to reduce the number of local responsibilities, the home local governments the ability to automobile collisions with utility rule units have considerably more regulate public utilities. In addi- poles along Telegraph Road by discretion and freedom from state tion to its own power to enact relocating electric wires to below control than do comparable Michi- laws, the legislature has del- ground. The city and utility dis- gan units. egated the power to regulate utili- agreed on responsibility for the ties to the Michigan Public Ser- cost of moving the wires. In rul- A constitutional convention could vice Commission (MPSC). The ing in favor of the utility, the choose to end Michigan’s experi- MPSC, whose history dates to Michigan Supreme Court decision ment with home rule, or dimin- 1873, has from time to time in City of Taylor v. The Detroit ish the home rule powers of local played a role in the regulation of Edison Company 475 Mich. 109, governments. Wording could be railroads, electricity, telephone, 715 N.W. 2d 28 (2006) shifted the changed to limit home rule pow- natural gas, petroleum pipelines, preemption for control of public ers to selection of officers and motor carriers, and water utilities. places from the local govern- creation of the rules within which A number of court cases since ments to the MPSC. local governments operate. Lan- adoption of 1908 Constitution guage could be adopted to place declared that the local control In previous cases dealing with control over economic matters established in the Constitution similar questions, utilities were with the state. preempts the MPSC’s statewide made to bear the cost of reloca- interest in regulating the use of tion as part of the cost of doing Alternatively, a constitutional con- public highways and rights-of- business as long as the reloca- vention may wish to undo legisla- way by public utilities. tion was in the course of the dis- tive actions, administrative rules, charge of a governmental func- and judicial decisions by strength- Over the past two decades, the tion. In overturning the ening home rule. Such a prefer- authority of local units to require precedent, the court relied on ence would make the home rule franchises and just compensation reasoning that the municipalities powers self executing. Local gov- for use of the public right-of-way may exercise the constitutional ernments would no longer need by private utilities, including elec- power to pass ordinances and empowering statutes to carry out tric transmission, pipeline, tele- regulations with reference to their the strong authority already communication and cable service highways and bridges only to the granted in the constitution. providers, has been undermined extent that those ordinances and by legislative initiatives. In each regulations are not inconsistent Municipal Control of High- of these areas, the control pro- with the general state law. This ways and Rights-of-Way vided to local governments in was the first case to arise since Section 29 has been eroded by the MPSC promulgated rules in Section 29 requires public utilities state legislative assertions of au- 1970 governing the underground to obtain consent from counties, thority. In effect, these legisla- placement of new and existing cities, villages, and townships for tive actions have subordinated utility wires. Since those rules the right to use highways, streets, public control of public property now exist, the court ruling infers alleys or other public places. In (rights-of-way), and the eco- that counties, cities, villages, and essence, this section says that pri- nomic rents payable for the use townships may control their high- vate entities should pay economic of that public property, to the in- ways and other public places only rents for the right to use public terest of private businesses. to the extent that their actions assets for business purposes. are consistent with state law. The Local governments have not re- court’s interpretive posture can be A provision similar to Section 29 ceived relief on these issues from found in the opening paragraph was first included in the 1908 the courts. As part of a whole- of the analysis: Dillon’s Rule is 9 CRC Special Report on Michigan Constitutional Issues confirmed as the lens through sues may be more pressing in one lish in metropolitan areas which a city’s home-rule power part of the region, while transit additional forms of govern- will be examined. issues may be more urgent in ment or authorities with another. But each function is es- powers, duties and jurisdic- A constitutional convention could sentially a creature of the region, tions as the legislature shall provide. Wherever possible, address the conflict between the not of individual jurisdictions. legislative powers of the state in such additional forms of government or authorities regard to public utilities, and the As is the case with any array of shall be designed to perform regulatory powers delegated to services provided by an individual multipurpose functions the Michigan Public Service Com- governmental unit, not all ser- rather than a single func- mission to oversee public utilities, vices are used equally by all resi- tion. [Emphasis supplied.] and the constitutional authorities dents of the jurisdiction. Police of local governments to regulate and fire protection blanket the Although the clear intent of this use of the right-of-way. Consis- city or township, while relatively section was to encourage the tent with the earlier discussion of few individuals may use a senior development of governmental home rule powers, a convention citizen center, but both may re- units that could provide multiple could act to clarify the state pre- ceive general tax support. In any services on a regional basis, there emption of local government in general-purpose government, an has been very little movement in the regulation of public utilities implicit agreement exists that, that direction during the nearly as a statewide concern, or while every service may not be five decades since the adoption strengthen the constitutional lan- used equally by every taxpayer, of the new constitution. Instead, guage to reinforce what had the menu of services funded by the prevailing vehicles for deliv- been, until only recently, how the the jurisdiction will be supported ering regional services have been law was interpreted. by all the taxpayers. That menu interlocal agreements and single- may be controversial and may purpose special authorities. Metropolitan Government change over time but, in a gov- Some of these authorities have and Authorities ernment of any size, some tax- limited taxing ability, some are supported services will be used funded by user charges, and A number of public services tran- by virtually all residents, some by some rely on the taxing author- scend the borders of Michigan’s several, and some by very few. ity of the general-purpose units local governments. Public trans- they encompass, but truly multi- portation, major arts and cultural Regional functions are subject to purpose regional authorities are facilities, harbors and airports, the same kinds of variation in uti- the exception, not the rule. water and sewer, and roads and lization. However, no structure bridges may provide benefits be- exists for the financing of com- A constitutional convention may yond the relatively small borders peting regional services. Coun- wish to consider alternatives to that characterize Michigan’s local ties perform this task over a lim- encourage greater use of multi- governments, or incurs costs of ited range of functions, but many purpose special authorities as that are of sufficient magnitude regional problems do not respect appropriate responses to regional that individual local governments county lines any more than city service needs. cannot bear the burden alone. or township lines. This underlies Each of these functions has its the language in Article VII, Sec- Removal of Elected Officials own constituency, yet all are ori- tion 27, of the Michigan Consti- ented toward the region, rather tution, which encourages multi- In 2008, the eyes of Michigan than a single jurisdiction. Differ- purpose metropolitan authorities. were on the City of Detroit and ent population groups in the the various efforts to remove then same part of the region may place Notwithstanding any other Mayor Kwame Kilpatrick from of- greater or lesser value on certain provision of this constitution fice. Section 33 provides that, regional functions. Sewerage is- the legislature may estab- “Any elected officer of a political

10 CRC Special Report on Michigan Constitutional Issues subdivision may be removed from that the ability to carry out the forced from office for misconduct office in the manner and for the removal could be challenged.10 related to their office and/or causes provided by law.” Before crimes unrelated to their office. he ultimately resigned from of- There have been other local gov- fice, efforts to remove Mayor ernment officials that have been A constitutional convention could Kilpatrick under Article VII, Sec- examine whether legal ambigu- tion 33, and Article V, Section 10 ities and challenges to efforts to of the Michigan Constitution, and 10 See MCL 168.327 for removal of city oust public officials are related to Section 327 of the Michigan Elec- officials, MCL 168.369 for removal of the strength of wording, or lack township officials, MCL 168.381 for re- tion Law were viewed by some of same, in the constitutional pro- moval of village officials, and MCL visions or in the statutes enacted as providing sufficient ambiguity 168.207 for removal of county officials. to implement these provisions.

Conclusion

One of the most significant issues would likely provide clarity to the the administration of county gov- a constitutional convention may proper balance of the state and ernment. It could be expected address is balancing the powers local government powers. that a convention would attempt of the state to empower, oversee, to provide greater direction on and control local governments The current provisions for county the conflict between the author- and the local governments’ inter- boards of supervisors are inop- ity of local governments to con- est in exercising the home rule erable because they violate the trol the use of their highways and powers currently provided in the “one person, one vote” principle public places by utilities and the constitution. Legislative action, of the U.S. Constitution. Other power of the state to regulate administrative rules, and court reforms a constitutional conven- those same utilities. Finally, a rulings have eroded the spirit of tion could address in the local convention may choose to exam- home rule as it was originally government article include efforts ine the need to address constitu- envisioned by the drafters of the to streamline the structure of lo- tional provisions related to multi- 1908 and 1963 Constitutions. cal government and creating purpose special authorities and Delegates to a 2011 convention greater flexibility to streamline the removal of public officials.

11 CRC Special Report Michigan Constitutional Issues

No. 360-11 A publication of the Citizens Research Council of Michigan August 2010 Eleventh in a series of papers about state constitutional issues ARTICLE VIII – EDUCATION

In Brief

The responsibility of the state for elementary and secondary education and higher education (both community colleges and public universities) is found in Article VIII of the Michigan Constitution. A review of the article raises a number of issues that would likely be debated at a constitutional convention, including both funding and governance issues. The level of state support provided to local school districts is a contentious issue and the language requiring the legislature to maintain and support a system of public education may be reviewed. Current language has not provided sufficient grounds for judicial intervention in school funding; stronger language requiring equal or adequate funding of public education may make the state vulnerable to court challenges. The current constitutional prohibition against aid to nonpublic schools has been an issue over the years with the passage of charter school legislation in 1993 and a 2000 ballot proposal to allow for school vouchers (defeated), and would likely be evaluated by a constitutional convention.

A constitutional convention would likely review the governance structure set up in Article VIII for issues related to both K- 12 education and higher education. The legislature, governor, state board of education, and superintendent of public instruction all have roles in K-12 education governance. Under the current system, governance is shared with ultimate authority over governance and funding residing with the state legislature. The state board of education has a constitutional oversight role, but it has been a limited role in practice. Additionally, statewide planning and coordination of higher education could be discussed and may lead to changes in how institutions of higher education are governed or how board members are selected. The election of members of the state board of education and three governing boards of public universities (University of Michigan, Michigan State University, and Wayne State University) adds 32 state education officials to the ballot (eight elected every two years in staggered elections) and lengthens the ballot significantly.

Finally, the establishment and support of public libraries in the 1963 Constitution may be discussed because of the evolving needs of residents with respect to libraries and technology.

Introduction The Michigan Constitution singles out education as to nonpublic schools and once to change the word a uniquely important state function by devoting an handicapped to disabled to comply with the nomen- entire article to it and by stating that “schools and clature in the federal American with Disabilities Act). the means of education shall be forever encouraged” However, if a constitutional convention is called for, (Section 1). Article VIII deals with elementary and a number of sections of Article VIII may be subject secondary education as well as higher education; it to review and potential alteration. has been amended only twice (once to prohibit aid

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

Constitutional Convention Issues

Issues likely to be discussed at a education, but it delegates the gives the board a broad grant of constitutional convention include provision of education to local and authority, in practice, the board’s those related to elementary and intermediate school districts. A role has been more “consultative secondary education governance constitutional convention may and deliberative.”1 The board is and funding, higher education clarify the duties of the legisla- empowered to make education organization and governance, ture in regard to public K-12 edu- policy only within the limits es- and public libraries. cation or it may weaken the au- tablished by state law; e.g., the thority of the legislature by board is not empowered to make Elementary and Secondary strengthening the state board of funding decisions regarding Education education. schools, but is supposed to ad- vise the legislature “as to the fi- Section 2 states that “The legis- State Board of Education nancial requirements of all pub- lature shall maintain and support 2 The state board of education con- lic education.” The board’s role a system of free public elemen- sists of eight members nominated was further defined and some- tary and secondary schools as by party conventions and elected what reduced by two executive defined by law.” While this is the at-large to eight-year terms in orders which transferred admin- only mention of the state legisla- statewide elections. The board istrative statutory powers and ture in relation to elementary and has the responsibility of appoint- responsibilities as head of the secondary education, it is impor- ing the superintendent of public Michigan Department of Educa- tant because it gives the legisla- instruction and determining his or tion (MDE) from the board to the ture ultimate authority over pub- her term of office. This was an superintendent of public instruc- lic K-12 education. The expansion on the 1908 Constitu- tion. Additional state laws and Constitution gives the governor tion that had provided for an court decisions have detailed the a role in education as an ex-offi- elected four-member board of board’s responsibilities and ex- cio member of the state board of education, including the elected tended its supervisory powers education (Section 3) and limited superintendent of public instruc- over nonpublic education. executive authority over the su- tion, with limited authority and perintendent of public instruction. At the 1961 Constitutional Con- responsibility. The state board of education and vention, most of the debate fo- superintendent of public instruc- The 1963 Constitution attempted cused on whether the governor tion are both created and their to expand the responsibilities of should be a voting member of the duties outlined in Article VIII. the state board of education. Section 3 states that the board State Legislature shall serve as the general plan- 1 Citizens Research Council of Michi- A constitutional convention may ning and coordinating body for all gan. Organization of State of Michi- review the role of the state legis- public education and have lead- gan Education Functions. Report No. lature in public education. Un- ership and general supervision 335, December 2002: pg. 1. der the current constitution, the responsibilities over all public 2 State Board of Education, Michi- legislature has ultimate authority education, except public univer- gan Public Act 287 of 1964, MCL over elementary and secondary sities. While the Constitution 388.1011.

2 CRC Special Report on Michigan Constitutional Issues state board of education. The being relatively weak institutions tions for office. A convention may principal arguments in opposition in relation to other state actors.4 review how other states select focused on a concern that the state board members and con- governor would dominate the The selection of members of state sider allowing the governor and/ board and a belief that the board boards of education varies across or other state officials to appoint would become politicized and the states. Twelve states elect some or all of the members of educational issues would be of some or all of the members of the state board of education. The secondary concern. Ultimately, their state board of education relationship between the gover- the governor was added as an ex- (ten states, including Michigan, nor and state board may be re- officio member without the right elect all state board members; viewed; the role of the governor to vote. two states elect some state board may be weakened by removing members, with the remainder the governor from the board or The framers of the 1963 Consti- appointed by the governor). In strengthened by making the gov- tution had high expectations for New Mexico, the elected state ernor a voting member. The re- the state board of education and board of education is advisory lationship between the legislature its oversight role. One delegate only. The remaining 36 states and state board may be reviewed saw the board as “a deliberative have appointed state board mem- as well; the role of the legisla- body of outstanding citizens.”3 bers. In the majority of these ture may be weakened by The board was given, what ap- states, board members are ap- strengthening the state board’s peared to be, a broad grant of pointed by the governor; in two authority and oversight role or constitutional authority over all states they are appointed by the may be strengthened by eliminat- public education. General dissat- legislature; and in two states, ing the state board of education. isfaction with the existing gover- members are appointed by mul- A strengthened state board of nance system at the state level tiple authorities. Two states, Min- education would provide an au- as it relates to K-12 education nesota and Wisconsin, do not thoritative statewide body with a would probably lead to a thor- have state boards of education.5 focus on education as opposed ough review of education gover- to the legislature, which must nance in a constitutional conven- A constitutional convention might spread its resources and energies tion. The reality in Michigan is consider restructuring the state across many topics. In practice, that the state board shares the board, strengthening its consti- state boards of education have responsibility for education policy tutional authority and oversight not proven to be strong, authori- making and reform with the leg- role, or eliminating the board al- tative institutions. islature and governor, and this together. Current board mem- has led the board to take a more bers are elected which contrib- Superintendent of consultative and advisory role and utes to an already lengthy ballot Public Instruction has also contributed to partisan and raises questions about vot- Section 3 specifies that the su- politics playing a greater role in ers’ knowledge of state board perintendent of public instruction the development of education candidates and their qualifica- serves as the non-voting chair of policy. Michigan is not unique in the state board of education and this regard as others have char- 4 as the executive director of the acterized state boards of educa- Paul Manna. State Governance, MDE. Unlike most other execution as having “significant pow- Policy, and Education Performance in the United States. Annual Meet- tive department heads, who are ers but limited influence,” and as ing of the American Political Science appointed by and report to the Association. Chicago, September 2- 5, 2004: pg. 3. 3 Citizens Research Council of Michi- 5 Mary Fulton. State Education Gov- 6 See Citizens Research Council of gan. Michigan Constitutional Issues: ernance Models. Education Commis- Michigan, Special Report #360-08, Education. Report No. 313-7, Sep- sion of the States: State Notes, Michigan Constitutional Issues: Ar- tember 1994. March 2008. ticle V – Executive Branch.

3 CRC Special Report on Michigan Constitutional Issues governor, the superintendent for the states defending their cur- Michigan courts, however, have serves at the will of the board.6 rent system.7 State courts in gen- not found Michigan’s school fi- However, the superintendent eral have been more accepting nance system to be in violation does head an executive office, sit than federal courts of the notion of state law or the State Consti- on the governor’s cabinet, and act that states provide a constitu- tution. In Governor v State Trea- as a staff officer to the governor. tional right to education because surer (1972), the Michigan Su- each state’s constitution articu- preme Court declared the former The Constitutions of 1850 and lates that state’s responsibilities deductible-millage school aid for- 1908 provided for the popular in relation to public education.8 mula to be in violation of the election of the superintendent of The provisions range from lan- Michigan Constitution. In 1973, public instruction, as 14 other guage similar to Michigan’s after the U.S. Supreme Court states currently do; a constitu- (“…maintain and support a sys- ruled in San Antonio Independent tional convention might consider tem of free public elementary and School District v Rodriguez that returning to an elected superin- secondary schools…”) to stronger per pupil disparities did not vio- tendent of public instruction. statements, such as public edu- late the Equal Protection Clause Another consideration may be to cation should be “thorough and of the U.S. Constitution and the allow the governor to appoint the efficient,” “uniform,” or should State Legislature enacted a new superintendent, which would provide “equal educational oppor- school aid formula, the Michigan weaken the role of the state tunity” to all. Kentucky and Texas Supreme Court vacated its ear- board and give the governor more are examples of states that have lier decision. In East Jackson authority over the superinten- had their school finance systems Public Schools v State of Michi- dent. In 24 states, the chief state declared unconstitutional using gan (1984), the Michigan Court school officer (i.e., the superin- the education article in the state of Appeals rejected arguments tendent of public instruction in constitution as the basis for the that the State Constitution pro- Michigan) is appointed by the decision. Schools and students vided a fundamental right to edu- state board of education; in 12 in California recently filed a law- cation and that it imposed upon states, the position is appointed suit claiming that elected officials the legislature a requirement of by the governor. have failed in their obligation to equal financial support of local support public schools.9 schools. The Michigan Supreme School Funding Court refused to hear an appeal.10 7 Michael A. Rebell. “Educational State Support for K-12 Education Adequacy, Democracy, and the With the passage of Proposal A Section 2 requires the state leg- Courts.“ Achieving High Educational in 1994, Michigan adopted a new islature to “maintain and support Standards for All: Conference Sum- school finance system that ac- mary. Eds. Timothy Ready, Christo- a system of free public elemen- complished a number of objec- pher Edley Jr., and Catherine E. tives: 1) it reduced local prop- tary and secondary schools as Snow, Division of Behavioral and defined by law.” Based on the erty tax rates for taxpayers across Social Sciences and Education, Na- the state; 2) it reduced school wording in their constitutions, 44 tional Research Council: pg. 226. states have experienced consti- districts’ reliance on local prop- 8 Todd Ziebarth. State Constitutions tutional challenges to state edu- erty tax revenues, thereby in- and Public Education Governance. cation finance. These cases origi- creasing their reliance on state Education Commission of the States: tax revenues (e.g., sales and in- nally argued for school funding State Notes, October 2000. equity, but then began to focus 9 on the adequacy of state school Jill Tucker and Marisa Lagos. “Schools, students sue state over finance systems. Decisions ren- funding.” San Francisco Chronicle, 10 Citizens Research Council of Michi- dered by state courts have var- 21.May.10. www.sfgate.com/cgi- gan. School-Finance Reform in ied, some siding with plaintiffs bin/article.cgi?file=/c/a/2010/05/ Michigan: Will Judicial Intervention arguing for school finance equity 21/MNDV1DHVMC.DTL (accessed be Next? Council Comments No. or adequacy and others finding 26.May.10). 986, January 1990.

4 CRC Special Report on Michigan Constitutional Issues come tax revenues), which tend tion. If this viewpoint is repre- tance of alternative sources of to be more directly linked to the sented in a constitutional conven- education. economy and more volatile; 3) it tion, proponents might seek to limited the growth of local prop- include stronger language than Concern about the quality of pub- erty tax revenues through a new exists in the 1963 Constitution as lic schools and the support for a property tax limitation which it relates to the state’s responsi- competitive educational environ- keeps a property’s taxable value bility to provide and support a ment may result in a review of the from increasing more than five system of free public education. existing prohibition against state percent or the rate of inflation, aid to private schools. It should whichever is less; and 4) it re- Prohibition on Aid to be noted that a 2000 statewide duced per pupil revenue dispari- Nonpublic Schools ballot initiative that would have removed the general prohibition ties in districts across the state. In 1970, Michigan voters added against indirect aid to nonpublic language to Section 2 of Article Since the passage of Proposal A, schools and established a voucher VIII of the Constitution prohibit- revenues per pupil in the lowest system in certain districts was ing state aid to nonpublic schools. revenue districts have increased defeated by a 69 to 31 percent This occurred after a two-year 159 percent from $2,762 in margin.11 The U.S. Supreme Court long acrimonious public debate FY1994 to $7,151 in FY2010. has ruled that school choice and that culminated in Public Act 100 During that time period, revenues voucher programs pass constitu- of 1970 (the school aid act), per pupil in the highest revenue tional scrutiny if the programs pro- which provided that the state districts increased only 18 percent vide true private choice and gov- would pay 50 percent of the sala- from $10,294 to $12,159. This ernment aid (state and federal) ries of certified lay teachers who has reduced the spending gap reaches private religious schools teach secular subjects in between the highest revenue and only as a result of the genuine, nonpublic schools in fiscal years lowest revenue districts by over independent choices of private 1971 and 1972, and 75 percent 33 percent, from a gap of ap- individuals. This is in contrast to of such salaries in subsequent proximately $7,500 per student in programs that provide govern- years. A 1971 Michigan Supreme FY1994 to a gap of only $5,000 ment aid directly to sectarian Court decision (Traverse City per student in FY2010. The cur- schools, which are less likely to School District v Attorney Gen- rent school finance system has pass constitutional scrutiny.12 eral) found one sentence of the made the amount of revenue pro- amendment to be in violation of vided to educate each pupil less Higher Education the U.S. Constitution and there- dependent on where each pupil fore unenforceable, but validated lives and the property wealth of Selection of Governing Boards the remainder of the constitu- that district. However, the gap tional amendment and the pro- The 1963 Constitution estab- in spending across districts has hibition on aid to nonpublic lished a more uniform system of not been erased and disparities schools. Public schools acad- higher education governance in spending continue to exist. emies (i.e., charter schools) are than existed under the 1908 Con- stitution. The members of the As noted above, the existing lan- not affected by this amendment because, while they are organized governing boards of the Univer- guage in Article VIII has not yet sity of Michigan, Michigan State provided a basis for successfully differently than traditional dis- challenging Michigan’s school fi- tricts, they are considered to be nance system in the courts. local public schools and qualify for 11 Citizens Research Council of Michi- Some advocates of more funding state aid in a way similar to tra- gan. Statewide Ballot Issues: Pro- for schools may be impatient with ditional districts. However, schools of choice and charter posal 00-1 – School Choice. Report the political process and may seek 331, September 2000. to reduce per pupil disparities or schools have blurred the lines 12 to increase funding to “adequate” between public and nonpublic Zelman v Simmons-Harris, 536 U.S. 639. levels through judicial interven- schools creating greater accep-

5 CRC Special Report on Michigan Constitutional Issues

University, and Wayne State Uni- voter knowledge of candidates, serve as the general planning and versity are elected at large, while board members, and the govern- coordinating body for all public the governing boards of the ten ing boards themselves. This can education, including higher edu- other four-year institutions are lead to ballot roll-off, where vot- cation”). The state board’s au- appointed by the governor with ers fail to vote for offices like uni- thority as it related to higher edu- the advice and consent of the versity governing board members cation was emasculated by state senate. The 13 university that are further down on the bal- language at the end of Section 3 boards13 consist of eight members lot, and/or voting based solely on which indicates that the author- each. name recognition or party affilia- ity of boards of higher education tion. These issues in addition to institutions to supervise their re- A constitutional convention may concern with the long ballot may spective institutions is not limited review the method of selecting focus attention on this issue at a by Section 3. In Regents of the board members for the 13 four- constitutional convention. University of Michigan v the State year institutions. Consideration (1975), the Michigan Supreme may be given to having the gov- It is important to note, though, Court found that the state board ernor appoint members to all 13 that some may view the election of education’s authority is advi- governing boards rather than just of the governing board members sory and the autonomy of the the ten currently appointed by the of the state’s three research uni- universities remained unchanged. governor. Gubernatorial appoint- versities as vital to the indepen- ment of members to the boards dence of those universities. A pro- Michigan has 13 independent, of ten of the higher education vision for electing the regents of autonomous public universities institutions has appeared to work the University of Michigan goes with governance undertaken by well. Furthermore, voters face back to the 1850 Constitution; the separate institutional governing difficulty in judging the qualifica- 1908 Constitution contained pro- boards, and 28 public community tions of candidates for the elected visions for electing board mem- colleges with locally elected gov- higher education governing bers for all three of the largest erning boards. Michigan’s orga- boards of the three largest uni- universities. At the 1961 Consti- nization of its public institutions of versities and in evaluating the tutional Convention, one delegate higher education is unique. votes and actions of current stated “…it’s of the greatest im- Twenty-four states operate under board members due to lack of portance that you maintain the one or two consolidated statewide election of the boards of control governing board(s); 24 states of the 3 large universities. It gives have a statewide coordinating 13 Michigan’s 13 public university in- the boards an independence that board that serves as liaison be- clude: Central Michigan University, they would not have were they tween state government and the Eastern Michigan University, Ferris appointed by the governor, and governing boards of individual in- State University, Grand Valley State this at times could be important.”14 stitutions; and only two states University, Lake Superior State Uni- (Delaware and Michigan) operate versity, Michigan State University, Planning and Coordination without a statewide coordinating Michigan Technological University, Northern Michigan University, Oak- An effort was made in the 1963 or governing board. “Michigan is land University, Saginaw Valley State Constitution to provide for plan- the only state with both a large University, University of Michigan (in- ning and coordination of higher population and a large number of cludes an Ann Arbor campus, education through the state institutions that has neither a Dearborn campus, and Flint cam- board of education (Section 3 consolidated governing board nor pus), Wayne State University, and states that the state board “shall a coordinating board. Michigan’s Western Michigan University. Some- unique decision to reject central- times the three University of Michi- ized governance or coordination gan campuses are referred to as is reflective of the state’s long his- three separate public universities, 14 State of Michigan Constitutional tory of guarding institutional au- but they are governed by one uni- Convention 1961: Official Record, 15 versity board. Volume I, pg. 1143. tonomy.” Critics of the current

6 CRC Special Report on Michigan Constitutional Issues system claim that it can lead to tion that would be responsible for be apportioned by the county mission creep and duplicative col- planning and coordination. treasurer in accordance with the lege programs across the state. directions of the state board for Advocates stress the importance Community Colleges libraries16). of institutional autonomy. Section 7, which was new to the A constitutional convention may 1963 Constitution, requires the A statewide university system wish to review this section of the legislature to provide by law for would make statewide planning Constitution and debate whether the establishment and financial and coordination of higher edu- the establishment and support of support of public community col- cation easier and may increase public libraries belongs in the leges governed by locally elected efficiency by coordinating the pro- Constitution. Some may feel that community college boards, and to grams offered by different univer- with recent technological ad- provide for a state board for pub- sities and colleges across the vancements, particularly with the lic community and junior colleges. state. Even if the current system advent of the Internet, libraries The Constitution provides that the of independent universities and are changing rapidly to meet the board consist of eight members colleges is kept, statewide plan- needs of residents and therefore appointed by the state board of ning and coordination of higher should not be established in the education. The financial support education may be a subject for Constitution with a dedicated provision is so general that it has review in a constitutional conven- source of funding because it is a had little or no effect on the fi- tion just as it was at the 1961 more static document that is less nancing of community colleges. Constitutional Convention. As amenable to adjustments than indicated above, efforts to give Libraries state law. Others, however, the state board of education a would stress the importance of planning and coordination role Section 9 requires the legislature public libraries in providing ser- have not been successful. A con- to provide for the establishment vices to those without access to stitutional convention may wish and support of public libraries. It books and technology at home to revisit that goal. One alterna- specifies that libraries should be and the many cuts libraries have tive short of a state university available to all residents and faced over the years to reinforce system might be a separate state should be supported by fines as- a need to establish libraries with board for post-secondary educa- sessed and collected for any a dedicated source of funding in breach of the penal laws in sev- the Constitution. eral counties, townships, and cit- 15 Carolyn Waller, Ran Coble, Joanne ies (state law specifies that the Scharer, and Susan Giamportone. North Carolina Center for Public Policy proceeds of all fines for any Research. Governance and Coordina- breach of the penal laws of Michi- 16 Distribution of Penal Fines to Pub- tion of Public Higher Education in all gan when collected in any county lic Libraries, Michigan Public Act 59 50 States, 2000: pgs 49-50. and not already apportioned shall of 1964, MCL 397.32.

Conclusion

While Article VIII has not been issues likely to be discussed in- statewide planning, coordination, amended heavily over the years clude the relationship among and and governance of higher educa- and does not have many uncon- roles of the governor, legislature, tion; and the establishment and stitutional or inoperable provi- state board of education, and su- support of public libraries. While sions, a review of it highlights a perintendent of public instruction, there are likely differing viewpoints number of issues that would likely in the governance and funding of on these issues, there is nothing be debated at a constitutional con- K-12 education; the language out- in Article VIII that has risen to the vention, relating to both education lining the state’s responsibility to level of crisis that would suggest governance and funding. Broad provide for and fund education; modification is necessary.

7 CRC Special Report Michigan Constitutional Issues

No. 360-12 A publication of the Citizens Research Council of Michigan August 2010 Twelfth in a series of papers about state constitutional issues ARTICLE IX – FINANCE AND TAXATION

In Brief

The power to tax and the disposition of the revenues collected involve two of the essential characteristics of civil government. This analysis examines several provisions in Article IX, “Finance and Taxation,” of the Michigan Constitu- tion and issues related to them that a constitutional convention might consider: state and local tax limitations; state tax structure; local tax structure; pension and other post-employment benefit funding; state borrowing; and, earmarking of state revenues for specific public programs. Neither the list of foregoing issues nor the presentation that follows is intended to be exhaustive.

Introduction

Article IX has been the subject of the most attempts most significant amendments were Proposal E of to amend the Constitution (29 proposed amend- 1978 (Headlee Amendment) and Proposal A of 1994; ments), indicating the importance of the issues con- both dealt with multiple sections and both created tained therein. The article has been successfully tax and/or spending limitations. amended 10 times, most recently in 2006. The two

Constitutional Convention Issues

A key purpose of a state constitution is to limit the provisions were contained in the Constitution when it governmental power of the state. That principle is of was adopted, while others were added subsequently particular importance with respect to the power of through amendments approved by voters. the government to tax and the interest of the people to limit that power. Article IX, “Finance and Taxa- The level of detail which the constitution should con- tion,” of the Michigan Constitution contains various tain with respect to taxation was an area of consid- limitations upon the otherwise plenary power of the erable disagreement at the 1961 Constitutional Con- legislature. These limitations range from prescribing vention. Many delegates believed that the Legislature the proportion of value at which property may be should be free to determine the level and type of taxed, to requiring voter approval before units of lo- taxation as circumstances arose, while other del- cal government may increase certain taxes and in- egates expressed the view that the Legislature should debtedness, to limiting the forms and rates of taxa- not be allowed complete discretion. In the end, con- tion (state and local), to specifying how the revenues vention delegates agreed to provide the Legislature from certain taxes are to be expended. Many of these with a “power of the purse” that is bound by consti-

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues tutional limitations pertaining to lative power. A new convention surrounding the level of detail the type of taxes that may be might begin by reexamining this contained in Article IX that a con- employed and the rates of cer- fundamental question about the stitutional convention would be tain taxes that may be levied. proper role of the state constitu- expected to address, Article IX Subsequent amendments to the tion relative to the Legislature’s contains several specific provi- Constitution added further limi- “power of the purse.” sions upon which a convention tations to this foundational legis- In addition to the broad concerns might wish to focus its attention.

State Tax and Revenue Limitations

With the exception of the limita- the power to tax and the power While the “flat” tax rate require- tions placed on it by the Consti- to appropriate provide the legis- ment of Section 7 is fairly straight- tution in Article IX, the Michigan lative branch with the authority forward, the section’s prohibition Legislature unilaterally exercises to command and guide state fi- on a “graduated” tax base is less the “power of the purse” without nancial resources. clear. Statutory implementation limitation when it comes to state of an income tax, whether for in- fiscal matters. While often Prohibition on Graduated dividuals or for businesses, can thought of as a single power, the Income Taxes have the practical effect of gradu- “power of the purse” consists of ating the tax base. Michigan cur- two distinct, but related, powers A graduated or “progressive” in- rently uses federal Adjusted Gross designed to serve as a check and come tax taxes higher income Income (AGI) together with vari- balance between the legislative earners at proportionately higher ous credits and exemptions to and executive branches of gov- rates than lower income earners. determine the basis of taxation, ernment. Through the power to Section 7 prohibits the imposition effectively resulting in a “gradu- tax (Section 1), the Legislature is of an income tax, graduated as to ated” state income tax base. able to transfer economic re- rate or base, by the state or any During the 1961 convention, sources from individuals and busi- of its subdivisions. This provision there was considerable discussion nesses to the state government was new to the 1963 Constitution. about the use of federal AGI in to finance public goods and ser- For all practical purposes, this pro- light of the proposed new lan- vices and to redistribute wealth vision has effectively served to guage; however, the convention among individuals and private limit income taxes levied at both delegates noted that federal AGI entities. This power is the sole the state and local level, and lev- could be used without violating province of the legislature and ied on both individual and busi- the constitutional provision. The cannot be “surrendered, sus- ness income, to those that involve delegates also discussed the im- pended, or contracted away” a single or “flat” rate. This provi- plications of the use of credits and (Section 2). The logical comple- sion neither requires an income exemptions in light of the new ment to the power to collect taxes tax nor does it limit the maximum prohibition and believed that the is the power to direct state spend- rate allowed if such a tax is au- legislature could prescribe their ing through appropriations, which thorized by the Legislature. These use. Over time, Michigan courts also rests entirely with the Legis- decisions are left to the discretion have upheld the use of exemp- lature (Section 17). Combined, of the Legislature. tions, exclusions and credits, but

2 CRC Special Report on Michigan Constitutional Issues on the grounds that they apply “flat” rate individual income tax to four percent, mirrors the lan- to all taxpayers without regard to rate. [Note: The 2010 Michigan guage that was included in the income. However, it is notewor- individual income tax rate is 4.35 1908 Constitution and carried for- thy that the Legislature also has percent.] Thirty-four states that ward to the 1963 Constitution. enacted exemptions which are have an individual income tax use based upon income. The amount a graduated rate system and the Under the General Sales Tax Act, of the homestead property tax rates vary from a low of 0.36 per- the legislature has authorized a credit is based on the income of cent in Iowa to a high of 11 per- discretionary tax at a rate of four the tax filer, as is the amount of cent in Hawaii. In addition, the percent, with 60 percent of the the earned income tax credit that number and range of the various proceeds constitutionally ear- a taxpayer can claim. [Note: tax brackets used in each state marked to the School Aid Fund Although the homestead property differ markedly, although most and 15 percent of the proceeds tax credit is applied against in- have between three and five constitutionally earmarked for come tax liability, the credit is brackets. Seven states (Alaska, distribution to cities, villages, and designed to provide property tax Florida, Nevada, South Dakota, townships, on a population ba- relief and therefore some contend Texas, Washington, and Wyo- sis. The mandatory two percent that it cannot violate the Section ming) do not have an individual tax was added by amendment in 7 prohibition.] income tax and two states (New 1994 (Proposal A) and is autho- Hampshire and Tennessee) only rized in the General Sales Tax Act. The prohibition against a “gradu- apply the tax to dividend and in- All proceeds from the mandatory ated” income tax was a conten- terest income. tax are dedicated in Section 8 to tious issue for a period of time the School Aid Fund. following adoption of the new A constitutional convention would constitution. Proposals to allow have an opportunity to revisit the According to the Federation of Tax graduated income taxes were prohibition on graduated income Administrators, as of January defeated in 1968 (Proposal I), taxes and to consider factors that 2010, all but five states (Alaska, 1972 (Proposal D), and 1976 affect uniformity of the tax base. Delaware, Montana, New Hamp- (Proposal D). In recent years the A convention would likely con- shire, and Oregon) levied a state- issue has reemerged in the pub- sider the issue in light of the fis- wide sales tax, with rates rang- lic policy debate in Lansing. Elimi- cal challenges facing state and ing from four percent (seven nation of the restriction has been local governments and the poten- states) to 8.25 percent (Califor- proposed to address the state’s tial for a graduated income tax nia). Twelve states, including ongoing structural budget defi- to increase tax yields. Michigan, levied the tax at a rate cits. With the same level of in- of six percent. come growth, revenues from Limitations on Sales Taxation graduated income taxes can grow The current limitations on the faster than the revenues from flat While the current six percent sales tax rate are likely to be con- rate taxes if incomes grow faster state sales tax is often viewed as sidered in light of the state’s on- for high income taxpayers than a single tax, it is actually two going fiscal challenges to balance for lower income taxpayers, separate taxes – a discretionary annual budgets and the desire to which has been the case in re- tax and a mandatory tax. Sec- levy local-option sales taxes (dis- cent years. tion 8 limits the rate of the sales cussed below). tax on gross taxable sales of tan- According to the Federation of Tax gible personal property to four State Revenue Earmarking Administrators, as of January percent and requires the levy of 2010, Michigan was one of seven an additional two percent tax on Earmarking, or dedicating rev- states (Colorado, Illinois, Indiana, gross taxable sales. Authoriza- enues, refers to the practice of Massachusetts, Pennsylvania, and tion for the legislature to levy the reserving revenues from specific Utah) that had a broad-based discretionary tax, at a rate of up sources for specific functions. In the absence of such revenue res-

3 CRC Special Report on Michigan Constitutional Issues ervations, resources flow to a In addition to earmarking state amount of revenue associated government’s general fund to be taxes, other state revenues are with the various provisions, the allocated through an appropria- controlled by constitutional ear- majority of the dollars earmarked tion process. Earmarking may marking provisions including vari- pertain to provisions included in occur as a fixed dollar amount or ous fee revenue for natural re- the original 1963 document. as a percentage of the revenues sources, state parks, and from a given source. In Michi- recreation purposes (Sections 35, A high level of earmarking, both gan, earmarking occurs through 35a, 40, 41, and 42). In some constitutional and statutory, con- both statutory provisions, which cases, earmarking creates a sepa- tributed to the calling of the 1961 can be modified by the Legisla- rate, unique state fund (e.g., trust Constitutional Convention. In the ture, and through constitutional fund) for the purposes of receiv- years immediately preceding the provisions that require a vote of ing specific revenues and the use new constitution, upwards of 70 the people to alter. Constitutional of the revenues is strictly con- percent of Michigan state tax re- earmarking is the most restrictive trolled by constitutional language. ceipts were dedicated to specific form and effectively limits the dis- purposes, either through law or cretion available to the Michigan Some of the current earmarking the Constitution. Following the Legislature in exercising its provisions pre-date the 1963 Con- adoption of the new Constitution “power of the purse” with respect stitution and were incorporated, and by the late 1960s, this figure to authorizing appropriations. or expanded, in the new docu- dropped to around 45 percent. ment. Other dedications have Gradually, the amount of state tax Article IX contains many earmark- been added to the current con- revenues dedicated to specific ing provisions that dedicate spe- stitution through amendment, purposes declined and remained cific percentages of revenues with much of the amendatory in the 40 percent range. The from different taxes to a variety activity occurring between 1994 school finance reforms of the mid- of functions (See Table 1). and 2006. In terms of the 1990s (Proposal A of 1994) in-

Table 1 State Tax Constitutional Earmarking Provisions and Fiscal Year 2009 Collections (Dollars in Millions)

Total FY2009 Earmarked Tax Earmark / Purpose Collection Amount Sales Tax 4% rate (Sec. 11) 60% - schools $4,083 $2,450 4% rate (Sec. 10) 15% - cities, villages, 4,083 612 and townships 2% rate (Sec. 8) 100% - schools 2,042 2,042 Use Tax 2% rate (Sec. 8) 100% - schools 431 431 Gasoline Tax (Sec. 9) 100% - transportation 837 837 Diesel Fuel Tax (Sec. 9) 100% - transportation 95 95 Vehicle Registration Tax (Sec. 9) 100% - transportation 841 841 Minor Transportation Taxes 100% - transportation 20 20 (Sec. 9) Tobacco Products Tax (Sec. 36) 6% - health care NA NA

Source: Michigan Department of Treasury, Annual Report of the Michigan State Treasurer FY2009; CRC calculations

4 CRC Special Report on Michigan Constitutional Issues creased the level to closer to 60 amended section 6. The revenue full implementation of the new percent and the level has fluctu- limit generally has been noncon- school financing system that relied ated little since that time. Today, troversial, chiefly because it was on increased state taxation in ex- about 60 percent (34 percent imposed when state revenues as change for a reduction in local through the Constitution and 26 a percentage of personal income property taxes. The revenue limit percent via state law) of the to- were at a peak. Section 26 au- also was exceeded in FY1999 and tal state tax revenue ($23 billion thorizes an adjustment in the rev- FY2000, due in large measure to FY2009) is earmarked and out- enue limit when programs are the strength of the state economy side of the full control of the transferred between governmen- and attendant revenue collections. Michigan Legislature. tal levels by constitutional amend- [Note: In each year the cap was ment. Proposal A of 1994 trans- exceeded, the amount was less State Revenue Limit ferred a substantial amount of than the one percent threshold in- school finance responsibility from cluded in Section 26 that requires In addition to the restrictions the local level to the state. How- pro-rata taxpayer refunds of the placed on individual taxes and the ever, Proposal A did not specify excess revenue. The excess rev- disposition of certain tax pro- that an adjustment in the revenue enue was deposited in the state’s ceeds, Article IX also contains an limit was authorized. rainy day fund.] overall state revenue limitation each fiscal year (Section 26), set In FY2009, state revenue collec- In addition to considering continu- to a fixed percentage (9.49 per- tion subjection to the Section 26 ance of such a limitation, a con- cent) of state personal income. limitation was $7.7 billion below the stitutional convention might wish This first-ever Michigan state rev- constitutional cap. Since the trans- to determine whether a proposed enue limit was added to the 1963 fer of the majority of education constitutional amendment which Constitution as part of the funding responsibility to the state transfers governmental programs Headlee Amendment in 1978, in 1994, the revenue cap has been between levels of government which added ten new sections (25 exceeded in three years. The first must specify whether the revenue through 34) to Article IX and time was in FY1995, following the limit is to be adjusted.

State Borrowing

Establishment of provisions to constitutional convention would house of the Michigan Legislature limit state borrowing in the inter- likely examine the state’s borrow- and subject to the approval of the est of protecting the credit of the ing experience in light of the op- people as to the purpose of the state has been a topic of discus- eration of several constitutional debt, the amount, and the sion at every constitutional con- provisions authorizing the issu- method of repayment. Section vention since 1835. The topic of ance of debt. 16 (discussed further below) pro- borrowing is covered extensively vides the state with the authority in the 1963 Constitution, includ- General Obligation Debt to issue debt for the purposes of ing limits on the type of borrow- making loans to school districts. ing the state can engage in, re- Section 15 and Section 16 pro- As of September 30, 2009, a to- quirements for voter approval, vide limitations on the issuance tal of $1.7 billion in general obli- and a limitation as to the amount of long-term general obligation gation debt was outstanding. of debt that may be issued. The debt, the repayment of which is basic limitation on state debt is backed by the pledge of the full Voter Approval faith, credit, and taxing powers contained in Section 12, “No evi- General obligation debt is differ- of the state. Section 15 provides dence of state indebtedness shall ent from state non-general obli- that the state may borrow money be issued except debts authorized gation debt, which is issued pur- pursuant to an act passed by two- pursuant to this constitution.” A suant to sections 9 and 13, in two thirds of the members in each

5 CRC Special Report on Michigan Constitutional Issues important ways. First, whereas ous transportation, housing, and structural budget deficits resulted general obligation debt service is infrastructure projects. Because in the deterioration of these posi- financed by the General Fund, of the complex and extensive use tive balances, effectively requir- debt service (principle and inter- of long-term borrowing, requiring ing the major funds to borrowing est) payments are financed with voter approval will hamstring internally from other state funds dedicated restricted revenues. For state officials and delay public and issue short-term notes to example, transportation-related service delivery. Arguments meet cash obligations. A consti- debt is financed by state fuel and against voter approval also cen- tutional convention would likely vehicle registration taxes. Second, ter on the fact that revenue-dedi- examine the state’s recent use of the issuance of non-general obli- cated debt is authorized by the this type of borrowing in light of gation debt does not require the state legislature, which safe- the persistent budget problems approval of the Michigan elector- guards the public interest. and evaluate whether or not the ate. The Section 15 requirement cap should be maintained, de- for voter approval has been inter- Short-Term Borrowing creased, or increased. preted by the courts to apply only In addition to the long-term gen- Loans to School Districts to general obligation debt. A to- eral obligation borrowing autho- tal of $19.7 billion in non-general rized by Sections 15 and 16, Sec- Article 16 provides that the state obligation debt was outstanding tion 14 allows the state to issue may borrow for the purpose of as of September 30, 2009. Voter- short-term debt (less than one making loans to school districts, approved debt represented just year) backed by the full faith and a provision that is statutorily eight percent of the total long- credit of the state, commonly re- implemented as the school bond term outstanding state debt at the ferred to as “cash flow borrowing.” loan fund (SBLF). Provision for end of FY2009. A constitutional This type of borrowing is used to this program was first introduced convention might consider help manage the cash needs that to the Michigan Constitution by whether or not voter approval result from timing differences be- amendment in 1955, and further should be a prerequisite for all tween receipts and outlays. Sec- amended in 1960. The 1963 Con- state debt, regardless of the tion 14 limits cash flow borrowing stitution continued the provisions method of repayment or type of to “15 percent of undedicated rev- in effect with minor modification. pledge. enues received by the state during the preceding fiscal year” and The SBLF lets school districts bor- Arguments in favor of requiring requires repayment by the end of row from the state the difference all state debt to be approved by the fiscal year. between what their debt levy gen- the electorate contend that it erates and the amount actually serves as a safeguard against the Since FY2003, Michigan has re- needed to make their annual bond state becoming over-leveraged lied heavily on this type of bor- payments. In essence, the SBLF and protects against defaults. It rowing to manage the daily cash allows school districts to borrow is argued that citizens, regardless needs of its major funds, the Gen- under the state’s credit rating. In of the nature of the borrowing, eral Fund and School Aid Fund. practical terms, the SBLF caps the ultimately finance the debts of the Short-term notes are generally maximum millage rate that can be state in the form of higher taxes issued very early in the fiscal year levied and extends the repayment or special charges and therefore and retired near the end of the over a longer period of time. they should have a voice in ap- fiscal year. For several years prior When adopted, the idea was to proving that debt. to FY2003, the state was able to allow growing school districts to avoid external short-term borrow- bond for more than their existing Opponents of requiring voter ap- ing, and the associated costs, tax bases could support with the proval of all state debt contend because the combined General expectation that over time their that long-term borrowing is a and School Aid Fund cash balance tax bases would grow and even- critical financial tool of the state was positive throughout the year. tually the bonds and the state and widely used to support vari- However, the state’s on-going loans would be repaid. It makes

6 CRC Special Report on Michigan Constitutional Issues it easier for school districts to con- new schools may serve as a detroit Public Schools approved the vince voters to approve bond sales terrent to urban sprawl, the SBLF issuance of $500.5 million of because it reduces millage levies lowers that cost in the near term. bonds in 2009. The 2009 bond in the near term in exchange for authorization comes at no addi- paying the loans over a longer Although the SBLF is structured tional expense to existing taxpay- period, thus pushing part of the to help growing districts, it is not ers, but will prolong the period cost on to future taxpayers. statutorily implemented to serve of time that will be needed to re- only such districts. Today, the tire this debt. A constitutional convention may primary constituency is school wish to address several issues re- districts with relatively low prop- Even if the focus of the SBLF has lated to the SBLF. First, the very erty wealth. Some of these dis- shifted to helping the state’s structure of the program has been tricts are effectively enabled to poorer districts, some of these criticized as contributing to urban “game” the system by perpetu- districts have been unable to par- sprawl. While the program could ally borrowing. Once sufficient ticipate. Because the tax bases be justified in the 1950s, as school borrowing has occurred to get a of some districts are sufficiently districts struggled to provide space district to the maximum required low, it is not foreseeable that state to “baby boomers,” population millage rate, the further incur- loans could ever be repaid given growth in the state has reached a rence of debt comes at no addi- a realistic outlook for growth in the plateau. Today most of the dis- tional cost to existing taxpayers. district’s tax base. Thus, some tricts forecasting growth in student Instead, it simply prolongs the relatively poor districts like populations are on the urban repayment periods. After autho- Hamtramck have been turned fringes. While the full cost of re- rizing the sale of $1.5 billion of away, while wealthier districts paying the bonds needed to build bonds in 1994, voters in the De- have benefited from the program.

Local Government Finance

Throughout Michigan’s history, tax’s mechanics and tax rate and erty tax burden. However, few local governments have devel- base limitations in the state’s su- municipalities have adopted these oped a relatively heavy reliance preme law. A secondary re- alternate sources and there has on the property tax as a source sponse was the growth of state been little significant reduction of of local revenues. As the only aid to local governments in Michi- the property tax burden by those source of local revenue available gan as a means of compensating that have adopted them. Each to local governments throughout local governments for taxes col- of these developments is ex- most of this history, overlapping lected at the state level that ei- plored below. layers of government were often ther were formerly collected at left to compete with one another the local level or that preempted Detail and Complexity for tax resources in the form of local collection of that tax. Over escalating property tax rates. For the years state aid has grown into Local governments’ reliance on property taxpayers, the result the role of supplementing the re- property taxes and the long- was a growing property tax bur- duced property revenues result- standing distrust of the den, weighted heavily by levies ing from the tax limitations as well government’s power to tax has for school operating purposes. as enabling local governments to led Michigan to engrain a great keep property tax rates lower deal of detail into the Constitu- Responses to the increasingly than they otherwise might have tion. The provisions specifying heavy property tax burden came been. A third response was the the mechanics of property taxa- on several fronts. First, a series enactment of legislation to autho- tion contained in the Michigan of amendments to the state Con- rize collection of taxes other than Constitution are far more detailed stitution embedded details of the property taxes to ease the prop- than provisions for many other

7 CRC Special Report on Michigan Constitutional Issues issues. Sections 3, 4, 5, 6, and ling growth of the tax base or Headlee Amendment created a 31 of Article IX relate to varied the tax rate applied to the base. requirement for local govern- aspects of property taxation. Michigan voters have adopted ments to obtain voter approval for both methods of limiting prop- the levy of new taxes or for in- The inclusion of finite detail in the erty taxes. creasing the rate of an existing state Constitution results in a tax above that which was autho- great deal of complexity in the Tax Rate rized at the time of the amend- actual administration of the prop- The first limit to property taxes ment (Section 31). Additionally, erty tax. Administration of the came in 1932 when the 1908 a property tax rate rollback pro- property tax, which tends to be Michigan Constitution was vision was established. If the complex by its very nature, is amended to create a 15 mill ag- state equalized value of existing made more complex as the gov- gregate limit on all jurisdictions property (exclusive of new con- ernments and taxpayers wrangle levying property taxes. When the struction and improvements) in over the meaning of constitu- 1963 Constitution was adopted, a taxing unit increases more rap- tional terms, their application to the 15 mill limitation was main- idly than inflation, the maximum specific situations, and the abil- tained and a new 18 mill limit was authorized property tax rate for ity of the language to be adapted introduced to eliminate the need the taxing unit is reduced so that to changing times. This already for county tax allocation boards. the total tax levy on existing prop- complex system has been further A separate provision was added erty is no greater than the prior complicated by layering tax limi- allowing voters to increase the year levy adjusted for the growth tations on top of existing provi- limitations up to 50 mills for up in inflation. This limitation is ap- sions. A constitutional conven- to 20 years (Section 6). plied to each taxing unit as a tion may want to begin with a whole, rather than to individual goal of eliminating some of the The principal shortcoming of parcels of property within the tax- complexity of the property tax these tax limitations is that so ing unit. system. much millage is excluded that the limitations have been ren- The principal shortcoming of Local Tax Limitations dered virtually meaningless. these provisions was the applica- Debt service millage levied by tion of the limitation to each tax- The property tax is among the local governments is excluded ing unit as a whole rather than to least popular of the major taxes from the 15, 18 and 50 mill limi- individual parcels of property. because: 1) it is paid in one or tations, as is operating millage While the total tax levy of the two lump-sum payments each imposed by any city, village, taxing unit could not increase year; 2) the base of the tax is charter county, charter township, faster than the rate of inflation often the primary possession of charter authority or other author- without a tax rate override vote, residents and businesses (i.e., ity, the tax limitations of which the value of individual parcels individuals’ homes and the build- are provided by charter or by could, and often did, appreciate ings in which the businesses are general law. These exclusions at rates faster than the rate of located) and 3) it is not linked to explain why aggregate property inflation. It was not unusual to income and taxpayers need to taxes levied on some parcels of find that the tax burden reduc- pay even when their income de- property exceed fifty mills. tion caused by the tax rate roll- clines or ceases all together. backs, which were calculated Actions to remedy the shortcom- based on a unit-wide tax base, Dissatisfaction with the burden ings of the tax limitations of the were not sufficient to offset the placed on taxpayers by the prop- original 1963 Constitution were growth in tax burden property erty tax has led to the creation taken in 1978 as part of the owners assumed because of ap- of several limitations in Article IX. Headlee Amendment. First, the preciation of their properties. Taxes can be limited by control-

8 CRC Special Report on Michigan Constitutional Issues

Property Tax Base erating millages were levied at tional convention delegates might different tax rates, the limitations ask whether those are in fact After repeated attempts to limit that now apply to unchartered policy issues that need to be ad- property taxation by controlling counties and unchartered town- dressed through Michigan’s tax tax rates, Proposal A of 1994 ships vary, which creates confu- code. Does the need to pursue amended Section 3 to introduce a sion at sufficient levels as to be- those goals outweigh the limitation on growth of the tax come unenforceable. longstanding policy of uniform base. School operating taxes were taxation? excluded from the uniformity re- Proposal A of 1994 also did not quirement and taxable value was amend the Headlee Amendment’s If so, convention delegates might created as a new measure of tax property tax limitations, nor did further ask whether a taxable base. The calculation of taxable it specify how the Headlee value system of valuing property value limits annual increases in the Amendment provisions should be should be applied to all classes value of individual parcels of prop- applied to the new measure of of property, or solely to residen- erty to the lesser of five percent taxable value and the “pop ups” tial property? The consequences or inflation. Property is reassessed in value that occur when owner- of applying taxable value to non- at the proper percentage (50 per- ship is transferred. The resulting residential properties are: 1) cent) of true cash value when statutory implementation of these revenue loss for the state and ownership transfers. limitations has had a compound- local governments; and 2) the ing effect creating greater aggre- provision of tax advantages to Introduction of taxable value as gate limitation than either businesses that have owned the the new tax base created a sys- Headlee or Proposal A was de- land and buildings longer than tem in which neighboring prop- signed to achieve individually. other competing businesses. erties that are alike in every way Ownership of residential proper- but the year of acquisition, can Convention delegates would likely ties tend to transfer much more be taxed at starkly different be asked to simplify the property frequently than that of commer- amounts depending on when tax limitations into a single en- cial and industrial properties, and ownership was last transferred. forceable system, although such ownership in each of those a task is better suited to the craft- Overlapping Limitations classes transfer more frequently ing of statute than that of draft- than that of agricultural proper- A constitutional convention likely ing a constitution. ties. It could be argued that the would be asked to address use of taxable value as the tax Michigan’s overlapping property Taxable Value base for non-residential proper- tax limitations. Each introduction A constitutional convention might ties is detrimental both to gov- of new property tax limitations has turn its attention specifically to the ernmental finance and to eco- been made without eliminating or use of taxable value as the appli- nomic development. amending the existing property cable measure of the property tax tax limitations already in the Con- base. Challenges to modified State Aid stitution, thereby creating a high value acquisition systems of valu- level of complexity and detail. ing property (such as taxable value A secondary response to local in Michigan) because they violate governments reliance on property Neither the 1978 tax limitations principles of uniform taxation have taxes as the primary source of nor the 1994 amendments al- been upheld on the grounds that local government revenues has tered the 15/18/50 mill limita- states have a rational interest in been the development of an ex- tions. Proposal A of 1994 ex- neighborhood preservation, con- tensive system of state aid to lo- cluded school operating taxes tinuity, and stability.1 Constitu- cal governments. from the 15/18 mill tax limitations, but did not amend those The state provides a broad range limitations to reflect the change. of financial support to its local Because the excluded school op- 1 Nordlinger v. Hahn, (505 U.S. 1) 1992. units of government—cities, vil-

9 CRC Special Report on Michigan Constitutional Issues lages, townships, counties, school A constitutional convention might the 1978 Headlee Amendment, districts, and community colleges. begin an examination of intergov- requires the state to maintain the Three-fifths of all state-levied ernmental finances by asking level of state spending paid to taxes, fees and other charges are whether the requirements that the local governments at a level at paid to local units of government. state provide aid to its local gov- least equal to what was paid in The majority of this is required by ernments should continue to be 1978. Since adoption of Proposal Sections 8, 10, and 11 of Article engrained in the constitution. The A in 1994, when the state as- IX in payments to school districts, complete elimination of these pro- sumed primary responsibility for cities, villages, and townships. visions would free the state legis- funding school operations, state lature to focus on state services spending to local governments Advocates of such a system argue (including aid to local govern- has been well in excess of the that the collection and distribution ments through a statutory system Section 30 funding requirement. of state revenues to local govern- of sharing state revenues if the A constitutional convention might ments lessens the reliance on the legislature so chooses). Alterna- consider whether such a require- property tax and diversifies the fi- tively, state aid could be replaced ment should be continued in a nances of local governments. It with a system of regional funding revised constitution, and if so, at creates greater equity and effi- structures that would allow differ- what level. ciency in the financial system by ent regions of the state to focus distributing funds in manners dif- on their own particular needs. Mandates on Local Governments ferent than the origins of the tax Section 29 requires the state to collections. It has allowed local Depending on how a constitutional pay in subsequent years at least governments to keep property tax convention deals with the state aid the same proportion of costs for rates lower than otherwise might provisions, it may also look at the activities or services required of have been the case. Furthermore, safeguards that were inserted into units of local government as it collection of certain taxes (i.e., sales the Constitution to protect against paid in 1978, the year in which taxes) by the state is more efficient erosion of state aid. Separate the amendment took effect. than would be the case if each lo- amendments have attempted to cal government collected taxes in- prevent diminution of state aid and The history of Section 29 sug- dependently. transfers of responsibility for ser- gests that, if it is desirable to ex- vice delivery without adequate tend such a provision into a new Alternatively, critics might sug- state funding to meet those in- constitution, changes will be gest that state aid has perpetu- creased local costs. needed to make it work better. ated an inefficient provision of First, notwithstanding a few law- local government services. The Sections 29 and 30 of the Headlee suits that have been filed to chal- subsidy of local governments al- Amendment were thought to be lenge funding changes by the lows them to operate indepen- necessary because a companion state, the provisions of Section 29 dently rather than seeking econo- section, Section 26, limits state have been wholly disregarded. A mies and efficiencies through government revenues in any given process for identifying mandates consolidation and joint service year to a fixed percentage of total and providing disbursements to provision. It was after the state personal income. Drafters of the fund state requirements for local began cutting statutory state rev- Headlee Amendment anticipated governments was never imple- enue sharing that local govern- that state policymakers might at- mented. The system created to ments intensified their efforts to tempt to mitigate the effects of identify existing mandates fell seek efficiencies in the provision the revenue limit by shifting to apart. Mandates were enacted of services through tools such as units of local government respon- without sufficient funding. intergovernmental collaboration. sibility for programs previously When the state was unable to funded by the state. Additionally, it will be necessary maintain school aid, the dialog to provide greater definition to State Aid to Local Governments related to school district consoli- the types of legislative directives dation intensified. Section 30, added to Article IX by 10 CRC Special Report on Michigan Constitutional Issues that would warrant the accompa- apply to all local governments of constitutional convention may niment of state funding. State a type (i.e., all school districts, all address mandates in one of three and local officials have tended to counties, etc.). ways: 1) examine the provisions define the concept of “activities of other states with similar limi- Examination of the constitutions and services required of units of tations for best practices with the and laws of other states reveals Local Government by state law” goal of strengthening the restric- 28 states with constitutional or differently. While the local gov- tions on unfunded mandates; 2) ernment officials tend to look statutory requirements that state join the 22 states without such upon such requirements as any funding accompany any state requirements for state funding of law or regulation that causes ac- laws that mandate local govern- tivities and services to be pro- ment services and activities.2 A local government mandates; or 3) vided in a specific way, state offi- keep the current provision in cials, and the courts, have used place but amend it so it serves 2 See CRC Report 355, Reforming the as a meaningful restriction. a much narrower definition that Process for Identifying and Funding Sec- defines mandates to include only tion 29 Mandates on Local Governments, those laws and regulations that July 2009.

Alternative Tax Sources

The decline in state shared revenues coupled with a contraction states with strong home rule pro- possibility of local-option sales of the property tax base because visions that do not limit their lo- taxes in Michigan. The sales tax of departures of people and busi- cal governments in this way, rate limitation in Section 8 ap- nesses from Michigan and the Michigan laws require an autho- pears to not permit local sales nationwide bursting of the hous- rizing state law for local govern- taxes. The primary impediment ing bubble has heightened the ments to levy alternate taxes. arises from a conclusion that the desire among local government local taxes would be subject to Cities have local option income officials for alternative funding the aggregate rate limitation pro- taxes at their disposal, but nei- sources to supplement or replace vided in the section. The current ther counties, villages, townships, the property tax. constitutional language is unclear nor school districts currently can whether the rate limitation was As was detailed in CRC’s analysis use this or other funding sources. intended to apply only to a state of Article VII3, one way in which Independent of the article on lo- sales tax or also to a local sales the state has weakened the con- cal government, a constitutional tax. According to a 1970 state stitutional grant of home rule convention might opt to include Attorney General opinion, the leg- powers to local governments was authorization for alternative fund- islature can only authorize a lo- by limiting their ability to levy lo- ing sources for local governments cal sales tax by amending the cal taxes. Article VII, Section 21 in the article on finance and taxa- state Constitution, since the vot- provides that “Each city and vil- tion. In doing so, a constitutional ers who ratified the Constitution lage is granted power to levy convention might consider intended to designate the sales other taxes for public purposes, whether the current provisions tax “as a state sales tax.”4 Fur- subject to limitations and prohi- related to the sales tax collude thermore, even if the state were bitions provided by this constitu- to prohibit local governments to yield part of its current taxing tion or by law.” Unlike many other from levying sales taxes. authority to local governments, revenues collected from local Local Sales Tax Prohibition Local government officials and proponents of regional service 3 See CRC Report 360-10, Article VII – Local Government, June 2010. provision have investigated the 4 OAG, 1969-1970, No. 4694.

11 CRC Special Report on Michigan Constitutional Issues sales taxes would be subject to subdivisions” from imposing a courts have not determined the the same dedication require- graduated income tax. These two legality of local sales taxes. ments found in sections 8, 10, sections, when read together, Given the tight statutory and and 11 (discussed earlier).5 suggest that when the drafters of constitutional constraints on lo- the 1963 Constitution intended to cal government revenue-raising It is worth noting that the word- limit not only state legislative au- options, and in light of the growing of Section 8 stands in con- thority, but also the authority of ing fiscal challenges facing local trast to that of Section 7 which units of local government, they governments prospectively, a prohibits “the state or any of its clearly expressed that intent. constitutional convention is likely to consider the questions sur- Although the issue has been ad- rounding the legality of local- 5 See CRC Report No. 305, Issues Relat- dressed by the Attorney General option sales taxes. ing to the Constitutionality of Local Sales (which has the effect of law un- Taxation in Michigan, June, 1992. til modified by the courts), the

Other Headlee Amendment Issues

Beyond the state and local gov- Definition of a “Tax” Role of the Court of Appeals ernment tax and revenue limita- Section 31 provides that “Units Section 32 provides that “Any tax- tions established by the Headlee of Local Government are hereby payer of the state shall have Amendment that are discussed prohibited from levying any tax standing to bring suit in the Michi- above, a constitutional conven- not authorized by law or charter gan Court of Appeals to enforce tion may direct its attention to when this section is ratified or provisions of Sections 25 through other constitutional issues cre- from increasing the rate of an 31…” The drafters’ notes do not ated by that amendment. For existing tax above the rate au- indicate why the authors of the instance, Section 25 serves as a thorized by law or charter when Headlee Amendment chose the preamble to sections 26 through this section is ratified…” Al- Court of Appeals as the forum in 34, the purposes of which are though Section 33 defines a which taxpayers could bring origi- apparent upon reading the sec- number of other terms contained nal enforcement actions. There- tions. Section 33 provides defi- in the Headlee Amendment, it fore, it cannot be determined nition for several of the signifi- does not define the term “tax.” whether the drafters anticipated cant terms fundamental to the As a result, the courts have the difficulty that that choice Headlee Amendment’s limita- played a very important role in would produce. Presumably, the tions. This practice is commonly differentiating taxes from fees drafters hoped to expedite the left to the legislature in other and from special assessments, process of challenging govern- parts of the Constitution, as can especially ad valorem special as- ment actions by eliminating one be seen by the number of times sessments. If a constitutional level of court hearings, the cir- the drafters used the term “as convention opts to continue the cuit courts that usually have full defined by law.” Section 34 di- tax limitations created by the dockets, and one set of appeals. rects the legislature to statutorily Headlee Amendment, it could implement sections 25 through serve a vital role in providing The Court of Appeals has been 33, a role that defaults to the leg- greater definition and clarifying reluctant to play the role that the islature in any case because the the extent to which local govern- Headlee Amendment created for Michigan Constitution is not self ments can use these funding it. In the most notable case, a executing. These sections serve tools to, at times, circumvent the lawsuit was filed in 1980 in the no other purposes. Convention intent of the limitation. Michigan Court of Appeals on delegates may wish to begin their behalf of seven taxpayers, includ- task by cleaning these sections ing Donald Durant, a resident of out of the Constitution. 12 CRC Special Report on Michigan Constitutional Issues the Fitzgerald School District.6 in carrying out its assigned role. are often at the heart of taxpayer The essence of the lawsuit was The Court of Appeals essentially lawsuits, but to resolve issues of that state officials had reduced refused to consider Durant on its law raised on appeal from trial the proportion of educational merits, choosing instead on two courts. Given the purpose that costs paid by the state to a level separate occasions to dismiss the the Court of Appeals serves, the below that required by the case on technical grounds. While decision to assign to it responsi- Headlee Amendment. Over the it is true that the case raised a bility to hear taxpayer lawsuits next 17 years, the Durant case number of complex factual issues, was arguably ill advised. would beat a well-worn path be- the court was not without options tween the Court of Appeals and for dealing with them. Should provisions of the Headlee the Supreme Court, often due to Amendment be carried forward to the Court of Appeals recalcitrance The court’s recalcitrance stems a new document, a constitutional from the fact that the Court of convention would likely be called Appeals is an appellate court. It upon to decide whether a unique 6 Durant v. State of Michigan, 456 Michi- was not established to handle legal process is needed for en- gan 175, 566 NW2d 272 (1997). complicated factual issues, which forcing the relevant provisions.

Public Pension and Other Post-Employment Benefits

Both state and local public pen- state’s constitution should contain public pension and retirement in- sion plans and retirement sys- an explicit protection for public come from taxation by state and tems in Michigan enjoy consider- pension benefits or if such pro- local governments. Private pen- able constitutional protections tection should be left to statutory sion and retirement benefits do under Section 24. Specifically, law and decisions of the courts. not enjoy the same constitutional this section establishes the “ac- Second, the term “accrued finan- protection from taxation, al- crued financial benefits” of each cial obligations” has been inter- though state law does provide plan or system as a contractual preted by the Michigan Supreme some degree of protection to pri- obligation of the unit of govern- Court to be limited to pension vate pension benefits.7 Currently, ment responsible for administer- benefits, but not other post-em- the Michigan Legislature could ing the benefit program. Further- ployment benefits (OPEBs), i.e., provide for full taxation of private more, the section prohibits the primarily health care benefits. pension and retirement income; benefits from being “diminished The disparate treatment of pen- however, such actions would or impaired” by the governmen- sion benefits versus OPEBs would likely raise equity concerns over tal unit. Section 24 also contains likely garner some attention dur- the different treatment of public a provision relating to how the ing a convention. and private plans. financial benefits shall be funded by each unit of government and The constitutional protections of Although the majority of states prohibits the funding for current public pensions from being “di- provide some form of constitu- services from being used to fi- minished or impaired” are under- tional protection for their pensions, nance “unfunded accrued liabili- stood to prevent state govern- Michigan is somewhat unique in ties”, or the amount that the ac- ment, or its subdivisions, from that it is one of only nine states crued actuarially-determined reneging on benefits previously where participants in the public liabilities of a pension fund exceed earned based on services ren- pension plans have a guaranteed the fund’s assets. dered. This does not prevent a unit of government, the employer, Two public policy issues arise in from modifying the level of future 7 The Income Tax Act of 1967 (Public Section 24 that a convention benefits offered to its employees Act 281 of 1967) provides a deduction might consider. First, a conven- prospectively. Also, this safe- from “taxable income” for a portion of private pension and retirement benefits tion might consider whether the guard is understood to shield received.

13 CRC Special Report on Michigan Constitutional Issues right to a benefit and that accrued While public pensions enjoy con- employers will be pressured to financial benefits cannot be dimin- siderable legal protections from shift more of the costs of previ- ished or eliminated, pursuant to infringement by the government, ously-promised benefits to retir- constitutional law. In all other OPEBs do not according to opin- ees or current employees. This states, legal protections are pro- ions rendered by the Michigan can occur by requiring retirees or vided through state laws or the Supreme Court. In Studier v. employees to pick up larger courts have ruled that there are Michigan Public Employees’ Retire- shares of the benefit costs, either safeguards based on due process ment System, 472 Mich 642; in retirement or during their ac- or federal constitutional provisions NW2d 350 (2005), it was deter- tive working years.9 A constitu- that protect contracts.8 In addi- mined that health care benefits do tional convention would be ex- tion to the protection from impair- not constitute “accrued financial pected to review, and possibly ment, Section 24 requires full ac- benefits” as the term is used in clarify, the degree to which the tuarial funding each fiscal year for Section 24. In effect, the Supreme Michigan Constitution should pro- services rendered that year and Court ruled that health care ben- tect certain OPEBs from being prohibits the funding from being efits are not protected by the Con- diminished or impaired. used to satisfy unfunded actuarial stitution from diminishment or accrued liabilities (UAAL). This impairment in the way that pen- does not prohibit financing the sion benefits are protected. 9 For example, recent statutory changes UAAL associated with a pension to the state-administered retirement Options to diminish or impair program covering public school employ- plan, only that funding intended ees (Public Act 75 of 2010) requires cur- to satisfy the “normal” cost of plan OPEBs do not relate to the taxa- rent school employees to contribute can not be diverted to the UAAL. tion of such benefits, like the pen- three percent of their salary to cover sion benefit, but to changes in the retiree health care costs. The required cost-sharing arrangements be- charge is intended to partially offset the employer’s costs associated with pro- tween employers and employees/ vided the benefit. It should be noted 8 The other eight states are: Alaska, retirees. As the costs of post-re- that a constitutional challenge to PA 75 Arizona, Hawaii, Illinois, Louisiana, Mis- tirement benefits continue to rise was initiated by a group of school em- souri, New Mexico, New York. State and (both at the aggregate and at the ployees, citing the protections provided Local Government Retiree Benefits, Re- per-retiree level), and state and under Article IX, Section 24 to health port to Committee on Finance, U.S. Sen- care benefits and arguing that the new, ate, U.S. Government Accountability local governments face growing mandatory employee contribution con- Office, 2007. fiscal challenges, it is likely that stitutes an impairment of the benefits.

Constitutional Sections of Statutory Nature

A constitutional purist might be- and taxation, should be avoided IX, placed in the Constitution in gin by asking how much of the and matters appropriate for legis- a series of five amendments, to- current Article IX belongs in a con- lation should not be incorporated taling some 3,118 words (or stitution and how much should be into the organic document. As about nine percent of the Consti- left to legislative discretion and was detailed above, much of Ar- tution), from 1984 to 2006. contained in state law. This line ticle IX either limits the ability to These amendments lifted lan- of thinking suggests that a con- tax or dedicates revenues to spe- guage directly from existing stat- stitution should not be an elabo- cific purposes. utes and placed it in the Consti- rate document. It should be rela- tution to prevent the legislature tively compact and economical in The most obvious example of from using balances in various its general arrangement and purely statutory language in the funds for purposes other than draftsmanship. Details, including Constitution is found in Sections those for which those balances those provisions related to finance 35 and 35a and 37-42 of Article were created.

14 CRC Special Report on Michigan Constitutional Issues

Conclusion

The role of a state constitution tions on the type of taxes that 2010 election, the delegates may in serving as a limitation on the may be employed and the rates feel as though a good deal of governmental power of the state of certain taxes that may be lev- their time is served in a legisla- is exercised most overtly in mat- ied. Subsequent amendments to tive role dealing with provisions ters of tax and finance. Draft- the Constitution added further of Article IX that are very statu- ers of the 1963 Constitution pro- limitations to this foundational tory in nature and determining vided the legislature with a legislative power. As a result, the level of discretion that should “power of the purse” that is should a constitutional conven- be afforded to state lawmakers bound by constitutional limitation be called at the November, in terms of fiscal matters.

15 CRC Special Report Michigan Constitutional Issues

No. 360-13 A publication of the Citizens Research Council of Michigan September 2010 Thirteenth in a series of papers about state constitutional issues ARTICLE X – PROPERTY

In Brief

Eminent domain ranks as one of the governmental powers most likely to create sentiments of expanded government. The perceived abuse of that power—when governments use of that power was permitted to extend to economic development—resulted in a 2006 constitutional amendment curtailing such uses. A constitutional convention would likely be asked to reexamine the proper balance between the governments’ authority to exercise this power and the rights of property owners.

Additionally, a constitutional convention may find it proper to reexamine Section 6 that provides for the rights and privileges in property of aliens.

Introduction

Article X of the current Michigan Constitution contains preserves, game areas, and recreational purposes. It provisions relating to public and private property. Sec- can be expected that these would carry forward to a tion 1 abolishes the disabilities of coverture (the con- revised constitution largely unchanged. dition or status of a married woman considered as being under the protection and influence of her hus- Nothing in Article X has become obsolete nor in vio- band). Section 4 authorizes state law to provide for lation of provisions in the U.S. Constitution. procedures relating to escheats (the reversion of property to the state when there is a failure of persons Article X has remained largely unchanged since adop- legally qualified to inherit or to claim that property). tion of the 1963 Constitution. The 2006 amend- Section 5 provides the legislature general supervisory ment of Section 2, dealing with eminent domain, jurisdiction over all state owned lands useful for forest has been the only amendment to Article X.

Constitutional Convention Issues

Two provisions that might draw the attention of a nent Domain) and Section 6 (Resident Aliens, Prop- constitutional convention are found in Section 2 (Emi- erty Rights).

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Eminent Domain were subordinate to the para- as possible. Governments place mount power of eminent do- parks, airports, and dams on Eminent domain is “the power of main.2 Courts also have typically stretches of contiguous land. Al- a government to compel owners accepted that the determination ternative sellers would not serve of real or personal property to of public use is a legislative deci- the needs of governments for transfer it, or some interest in it, sion that courts should debate such projects. The power of to the government.”1 Like police only if the party opposing the eminent domain allows govern- powers and the power to tax, the condemnation demonstrates ments to force the owner to be- power of eminent domain has “fraud, error of law, or abuse of come a seller and requires that long been considered inherent in discretion.”3 the owner be compensated for government. As such, drafters of the taking of the property. American constitutions typically The commonly accepted “public have not felt the need to enumer- uses” for which eminent domain It is important to note that these ate the power of eminent domain, is properly employed include pub- uses sometimes include takings but rather have sought to place lic works projects such as road- in which the property is trans- limits on government’s use of this ways, railroads, airports, ports, ferred from a private party to power. The U.S. Constitution lim- dams, public buildings, and parks. another private entity. For in- its the power of eminent domain Eminent domain permits govern- stance, railroads are typically pri- in the Takings Clause of the Fifth ment to overcome market barri- vately owned and dams often are Amendment, which states in per- ers that would otherwise serve to constructed for private electric tinent part: “… nor shall private halt the functioning of that gov- companies. In these instances, property be taken for public use, ernment providing those services. it is necessary for the government without just compensation.” Ev- Operation of the marketplace to facilitate the operation of pri- ery state has constitutional pro- without barriers requires willing vate entities on the basis that visions that echo the Takings buyers and willing sellers. A gov- those entities operate as instru- Clause of the U.S. Constitution. ernment, when it needs land for ments of public commerce. Some states also have constitu- a project, acts as a willing buyer, tional provisions that create pro- but private property owners are In the past couple of decades, the cedures for the use of eminent not always inclined to serve the public uses for which eminent domain. role of willing sellers. A typical domain has been determined to market remedy for an unwilling be appropriate have expanded. Courts have accepted the neces- seller would be to seek an alter- In recent years, some uses of sity of eminent domain. Histori- native seller, but this is not pos- eminent domain have involved cally, the courts have reasoned sible for most government the taking of private property so that all private property rights projects. Roads and railroads are that it can be transferred to an- generally built in as straight a line other private entity for an economic development purpose. The idea that governments are 1 The Oxford Companion to the Supreme Court of the United States, ed. Kermit using eminent domain for such 2 West River Bridge Co. v. Dix, 6 How. L. Hall, (Oxford University Press, Inc., purposes is controversial. The (47 U.S.) 507 (1848). New York, NY, 1992) p. 253. root of the disagreement rests 3 MCL 213.56(2). with differing opinions of whether

CRC Board of Directors EUGENE A. GARGARO, Jr., Chair TERENCE M. DONNELLY DANIEL T. LIS JERRY E. RUSH JEFFREY D. BERGERON, Vice Chair RANDALL W. EBERTS SARAH L. MCCLELLAND MICHAEL A. SEMANCO NICK A. KHOURI, Treasurer DAVID O. EGNER ALEKSANDRA A. MIZIOLEK TERENCE A. THOMAS, Sr. JOSEPH R. ANGILERI LAURA FOURNIER CATHLEEN H. NASH AMANDA VAN DUSEN MICHAEL G. BICKERS JOHN J. GASPAROVIC PAUL OBERMEYER KENT J. VANA BETH CHAPPELL INGRID A. GREGG BRYAN ROOSA JEFFREY P. GUILFOYLE, President RICK DIBARTOLOMEO MARYBETH S. HOWE LYNDA ROSSI

2 CRC Special Report on Michigan Constitutional Issues economic development can be coordination central government land, must satisfy the Constitution’s properly classified as a “public alone is capable of achieving.”8 public use requirement.”11 use.” This brand of necessity would in- Thus, the Court did not say that Major Court Cases clude “highways, railroads, ca- all uses of eminent domain in nals, and other instrumentalities which the condemned property is Two key court decisions led to a of commerce,” all of which could transferred to a private entity is 2006 amendment that creates the potentially suffer from imperfec- forbidden. It said that transfer current limitations on the use of tions in the functioning of the of condemned property to a pri- eminent domain. The 2004 market that could make their con- vate entity may be appropriate Michigan Supreme Court ruling in struction impossible without land where: County of Wayne v. Hathcock4 condemnation. The government’s ended the state’s reliance on use of eminent domain to facili- 1. “public necessity of the ex- Poletown Neighborhood Council tate land assembly, and avoid the treme sort” requires collective v. Detroit5 as a precedent that complications caused by a single action; permitted Michigan state and lo- landowner, in these cases, is seen cal governments to take property as legitimate. 2. the property remains subject from one owner to give to another to public oversight after the private owner in the name of eco- Second, the Court said a transfer transfer to the private entity; nomic development. of condemned property to a pri- or vate entity is consistent with the In addressing this issue, the Court Constitution’s “public use” re- 3. the property is selected be- adopted a three-part definition, quirement “when the private en- cause of “facts of indepen- any one of which would deter- tity remains accountable to the dent public significance,” mine when the transfer of a con- public in its use of that property.”9 rather than the interests of demned property to a private Land condemned for a public util- the private entity receiving entity is a “public use.”6 The first ity, for instance, would still remain the property. part of the definition was “public accountable to the public through necessity of the extreme sort oth- Shortly after the Michigan Su- regulations of the Public Service erwise impracticable.”7 It speci- preme Court ruled in the Commission. fied that, “[T]he exercise of emi- Hathcock case, the U.S. Supreme nent domain for private Finally, the Court said that con- Court ruled on the case of Kelo v. 12 corporations has been limited to demned property may be trans- City of New London in which those enterprises generating pub- ferred to a private entity “when the condemned land would be trans- lic benefits whose very existence selection of the land to be conferred to a private entity. The City depends on the use of land that demned is itself based on public of New London, Connecticut, pro- can be assembled only by the concern.”10 The Court said, “the posed to use eminent domain to property must be selected on the revitalize a part of the City, hop- basis of ‘facts of independent pub- ing to address characteristics that lic significance,’ meaning that the led a state agency to designate underlying purposes for resorting the City a “distressed municipal- 4 County of Wayne v. Hathcock, 471 to condemnation, rather than the ity.” In handing down the court’s Mich. 415 (2004). subsequent use of condemned decision, Justice Stevens ob- 5 Poletown Neighborhood Council v City served that each state is free to of Detroit, 410 Mich 616 (1981). 6 The three characteristics adopted were taken from Justice Ryan’s dissent in the 8 Ibid., p. 33. Poletown Neighborhood Council v. City 11 Ibid., p. 36. 9 Ibid., p. 34. of Detroit, 410 Mich. 616 (1981). 12 Kelo v. City of New London, 125 S. Ct. 7 Hathcock, p. 33. 10 Ibid., p. 36. 2655, 2673 (2005).

3 CRC Special Report on Michigan Constitutional Issues set limits on the legislative pow- transfer to a private entity for and suggest it should be given ers of its legislature and munici- the purpose of economic de- more time as is. palities. States have the latitude velopment or enhancement of to decide the wisdom of using tax revenues. Property Rights of Aliens condemnation for purposes of economic development and have 3. The burden of proof that the Section 6 provides that, “Aliens the leeway for setting restrictions taking is for a public use is who are residents of this state on its use. placed on the government pro- shall enjoy the same rights and posing the taking instead of the privileges in property as citizens 2006 Amendment owner objecting to the taking. of this state.” This provision origi- nated in the 1850 Constitution Michigan and many other states 4. Section 2 protects against fu- and has carried forward with reacted to Justice Stevens state- ture legislative actions or judi- some changes on phraseology to ment by creating new limits on cial decisions that would reduce the 1908 and 1963 Constitutions. the governments’ use of eminent the rights, grants, or benefits domain either by changing state afforded to property owners. At first blush, it would seem that laws or by amending state con- such a provision creates little constitutions. The 2006 amendment Issues to Consider troversy and is an important pro- to the Michigan Constitution in- vision for attracting economic de- corporated the standards laid out A constitutional convention could examine the issue of eminent velopment from persons and by the Michigan Supreme Court businesses outside the United in the Hathcock ruling to shift the domain and the difficulty of balancing the legitimate need for States. Unlike some countries, balance to the property owners where ownership of assets by for- and their right to acquire, own, government taking with the protection of property owners rights. eign interests have been national- use and protect private property ized during times of unrest, respect in four ways. Changes that create more protections for property owners could for the rights of property owners, whether domestic or foreign, pro- 1. If the government seeks to make it more difficult and more vides trust that the investments use condemnation to take an expensive for governments to made will be secure. However, in individual’s principal resi- exercise eminent domain. Some wake of the Arizona immigration dence, the amount of com- might attempt to lessen the cost law and sentiments of others that pensation paid must at least to governments in exercising would treat aliens differently than equal 125 percent of that eminent domain without creating U.S. citiezens, it is possible that a property’s fair market value. additional opportunities for its use in economic development. Many constitutional convention might be 2. While Section 2 does not de- might feel that it is too soon to seen as an opportunity to weaken fine “public use,” it makes clear judge whether the 2006 amend- the language in this provision in an that public use is not to include ment created a proper balance attempt to weaken the rights of takings of private property for aliens.

Conclusion Section 2, eminent domain, is the delegates, attempts could be the recent adoption of the emi- section of Article X most likely to made to shift the balance be- nent domain amendment may become the subject of revision if tween the government’s power to create an interest in preserving a constitutional convention is con- use eminent domain and the the status quo. vened. Depending on the ideo- rights of property owners in ei- logical leanings of the convention ther direction. On the other hand,

4 CRC Special Report Michigan Constitutional Issues

No. 360-14 A publication of the Citizens Research Council of Michigan September 2010 Fourteenth in a series of papers about state constitutional issues ARTICLE XI – PUBLIC OFFICERS AND EMPLOYMENT

In Brief

Trust in government officials is key to a thriving democracy, functioning bureaucracy, and a true sense of representation on the part of citizens. Article XI is concerned with public employment and public officers in Michigan, including establishment of the state civil service system. The system has functioned without major challenges over the past 46 years; however, a constitutional convention would be expected to spend some of its time examining the issues of collective bargaining for state employees, automatic funding for the system, and legislative review of civil servant compensation. Also, a convention would be expected to discuss matters that may not have been in the forefront and on the minds of the framers of the 1963 Constitution, including restrictions on employment options for former public officials, personal financial disclosure for public officials, and ethics in state government.

Introduction

Article XI, “Public Officers and Employment”, con- Article XI has been the subject of two citizen-initi- sists of seven sections that lay out rules regarding ated amendments, both dealing with Section 5 and elective office and public employment in Michigan. the topic of collective bargaining for state employ- Currently the sections relate to the oath of office for ees.1 A 1978 amendment was adopted by the vot- public officers (Section 1), terms of office for state ers to provide collective bargaining and binding ar- and county officers (Section 2), eligibility to hold bitration to state police troopers and sergeants. In office as a custodian of public moneys (Section 3), 2002, voters rejected a proposal to provide the same extra compensation for public officers (Section 4), collective bargaining rights enjoyed by state police state civil service system (Section 5), merit systems employees to all state classified employees. for local governments (Section 6), and impeachment of civil officers (Section 7). It can be expected that these would carry forward to a revised constitution 1 largely unchanged in much the same way that many Proposal 2010-02 on the November 2010 ballot represents the third contemplated amendment to Article XI. The proposal, of these provisions were carried forward from the if approved by the voters, would add a Section 8 to Article XI 1908 Constitution. to prohibit certain felons from holding elective or appointive office. See CRC Memo 1102 for more details (www.crcmich.org/ PUBLICAT/2010s/2010/memo1102.html).

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Constitutional Convention Issues

Despite the relatively few times tion. Constitutional language Collective Bargaining that Article XI has been consid- spells out the organization, fund- Prior to 1980, it was widely held ered for amendment, it is likely ing, composition, powers, and that a constitutional amendment that a constitutional convention responsibilities of the Civil Service to Section 5 was a necessary pre- would discuss and review a num- Commission. Because of this cursor to establish collective bar- ber of issues pertinent to the topic detail, the system is largely insu- gaining for state classified employ- of public employment, including lated from political interference, ees. It was only after a 1978 the state’s civil service system something that marred state bu- amendment that state police per- (Section 5), post-employment reaucracies in the early 20th cen- sonnel gained access to collective restrictions for former state offi- tury and led to civil service posi- bargaining. At that time, the vast cials, financial disclosure require- tions being filled because of majority of state workers did not ments for public officials, and the political patronage as opposed to have access to a collective bar- establishment of an ethics com- merit. gaining process, and it was be- mission. A 1940 amendment to the 1908 lieved that establishing collective bargaining would constitute a del- State Civil Service Michigan Constitution created the civil service system after the egation of the Civil Service Broadly defined, civil service sys- Michigan legislature gutted a Commission’s constitutional au- tems are those where individuals statutory system in the late thority to set pay rates of classi- 2 are employed on the basis of 1930s. The 1961 Constitutional fied workers. This contrasted merit and performance on com- Convention considered many is- with the experience in the private petitive examinations. Section 5 sues surrounding the civil service sector and local governments in creates the Michigan Civil Service system; however, no major sub- Michigan, where employee-em- Commission and the state’s civil stantive changes were made in ployer relations had been gov- service system. The Commission the 1963 Constitution and most erned by collective bargaining for 3 is responsible for fixing rates of of the language from the 1908 many years. While organized employee compensation, regulat- document was folded into the state employee groups partici- ing the conditions of employ- new constitution. Despite the pated in “meet and confer” dis- ment, and administering competi- historical stability of Section 5 and tive examinations as a basis for its non-controversial language, a selecting individuals for employ- constitutional convention is likely 2 For background, see CRC Memoran- ment or promotion in the state to review a number of civil ser- dum No. 1068, “State Constitutional Is- classified service. While other vice-related issues, including col- sues on the November General Election states provide the foundations for lective bargaining for state em- Ballot – II, Proposal 02-03: Collective their civil service systems in their Bargaining and Binding Arbitration for ployees, automatic funding for State Employees,” September 2002. constitutions, Michigan is widely the Civil Service Commission, and 3 considered to have the strongest the legislature’s role in setting civil Municipal, county, university, and other types of public employees are covered constitutional system and one service pay rates. by the Public Employment Relations Act that requires no enabling legisla- (PERA), Public Act 379 of 1965.

2 CRC Special Report on Michigan Constitutional Issues cussions with their employer (the Commission’s operations from the mission, although attempts have State of Michigan) and entered oversight and accountability re- been made (most recently in into memoranda of understanding views that accompany the annual 2010). While the legislature has concerning conditions of employ- appropriations process. In state limited control to set classified pay ment, the Civil Service Commis- Fiscal Year 2008-09, the aggregate rates, it has absolute authority, sion was responsible for setting state classified payroll was subject to gubernatorial veto, to employee compensation (subject $4,781.2 million and the one per- set appropriation levels for state to modification by the Michigan cent guarantee appropriation agencies and departments. In this legislature) per Section 5. amounted to $47.8 million for the sense, the legislature is able to Fiscal Year 2009-10 budget. directly influence the aggregate In 1980, the Civil Service Com- level of personnel spending in any mission, through rule, authorized A constitutional convention could single state agency or department. collective bargaining for the ma- be expected to review the unique jority of classified employees. funding guarantee provided in The Constitution requires the However, the collective bargain- Section 5 in light of the limita- governor to submit the upcom- ing agreements reached between tions it places on legislative dis- ing pay rates, approved by the employee groups and the State cretion for allocating public funds Civil Service Commission, at the of Michigan are subject to the and the state’s fiscal challenges same time the executive budget Commission’s review, modifica- over the past decade. It could is presented to the legislature, tion, and approval. The Commis- be argued that the civil service which occurs in early February in sion’s approval is deemed neces- system is well enough established most years. The legislature has sary to fulfill the Section 5 that the automatic appropriation a relatively narrow window to requirement that the Commission is no longer necessary. Support- decide whether to reject or re- set pay rates. ers of the automatic appropria- duce the pay raises, as it must tion would argue that the guar- act within 60 calendar days fol- Michigan state government has antee is necessary to safeguard lowing receipt of the governor’s operated under its current system the independence of the system executive budget (early April), of collective bargaining for state from undue political intrusion, a whereas the legislature has until employees for nearly three de- situation that led to the constitu- the start of the new fiscal year cades; however, the Commis- tional amendment creating the (October 1) to complete its work sion’s authority to establish this civil service system in 1940. on the budget. Furthermore, the unique form of collective bargain- legislature only can reduce pro- ing has not been challenged in the Legislative Review of Civil Ser- posed increases “uniformly,” courts. Given that a 1978 consti- vice Pay Recommendations meaning that reductions must tutional amendment authorized Section 5 provides the Michigan apply to all classes of employees only enlisted state police person- legislature with limited control affected by the increases. Also, nel to participate in the collective over civil service pay rates ap- the legislature is not permitted to bargaining process, it would be proved by the Civil Service Com- reduce rates below those cur- appropriate to clarify the rights of mission. Currently, the legislature rently in effect. other groups of state employees is authorized to reject or reduce in a constitutional convention. A convention is likely to consider increases in compensation rates the issues surrounding legislative for state employees for the next Civil Service 1% Appropriation control of civil service pay rates, fiscal year only if a measure to especially in light of state fiscal Section 5 also includes a provision accomplish this receives approval challenges and the role played by for an automatic appropriation of from two-thirds of the members employee compensation. Some one percent of classified payroll for in each house. The legislature has argue that the legislature should the operation of the civil service never successfully rejected or have more direct control over civil system. This provision effectively modified the pay increases recom- service pay given the legislature’s insulates the Civil Service mended by the Civil Service Com-

3 CRC Special Report on Michigan Constitutional Issues sole constitutional authority for term limits in November 1992 and Many states have adopted “re- making appropriations and rais- they took effect for terms begin- volving door” restrictions, either ing the necessary revenue to sup- ning on or after January 1, 1993.5 statutorily or constitutionally. In port those appropriations. This Given Michigan’s strict, lifetime some cases, restrictions only ap- might include a longer period to limitations, many former, term- ply to former legislators, while in deliberate and act on the Civil limited officials seek employment other states the restrictions also Service Commission recommen- within the private sector dealing apply to elective and appointive dations or the ability to reduce with the issues and policy mat- executive branch personnel.7 compensation rates below those ters on which they previously According to the National Confer- in effect at the time the increases worked as elected officials. ence of State Legislatures (NCSL), were transmitted to the legisla- Former officials might become there is some form of restriction ture. A convention also might lobbyists or government affairs on former legislators in 31 states. review the vote threshold (two- representatives with trade asso- Generally, the “cooling off period” thirds in each chamber) required ciations, businesses, or non-prof- ranges from one year to two to modify or reject pay rates and its immediately following their years before individuals can take consider a lower limit to make it tenure in public office. a position that involves direct in- easier to get the requisite votes. teraction with the legislature in a A convention might consider particular state.8 Ethics Laws whether Michigan’s Constitution should have a “revolving door” If a convention opts to keep term A constitutional convention might restriction that prescribes the limits in their current form and in want to consider introduction of amount of time that has to pass light of the consequences of ethics provisions to the state con- before former public officials can Michigan’s strict term limit provi- stitution. These might include re- appear before bodies (legislative sions, it is likely that a constitu- strictions on when former state and/or executive) that they just tional convention would discuss officials can engage in lobbying, left. Such “cooling off periods” the advantages and disadvan- personal finance disclosure for are intended to make sure that tages of restricting the post-of- elected state officials, and creation elected officials are not using their fice options of former public offi- of an ethics commission with current positions to advocate or cials. Proponents of “revolving meaningful enforcement powers. advance the interests of an indi- door” laws argue that they are vidual or group for which they necessary to ensure that elected Post-Office Restrictions on might work following their time officials are not beholden to cer- State Officials in public office. Currently, Michi- tain interests while in office. Section 54 of Article IV and Sec- gan does not require, in any ma- Some contend that these laws tion 30 of Article V of the 1963 terial way, a “cooling off period” promote a greater sense of pub- Constitution contain term limita- before former elected public offi- lic trust in government and its tions for both legislators and cer- cials can work as lobbyists.6 officials. Opponents say that tain popularly-elected executive “cooling off periods” are unfair to branch officials.4 Voters approved legislators because they limit 5 The constitutional issues surrounding Michigan’s term limit provisions were covered in an earlier report in this series, “Article IV: Legislative Branch”, May 7 Craig Holman, “Revolving Door Restric- tions by State, 2005”, February 2005, 4 2010. Service in the Michigan House of Repre- Public Citizen. www.publiccitizen.org/ 6 sentatives (two-year terms) is limited to Public Act 472 of 1978, as amended, documents/Revolving%20i three terms and service in the Michigan prohibits former members of the Michi- n%20States.pdf Senate (four-year terms) is limited to two gan House of Representatives or the terms. Executive branch officials (gover- Michigan Senate who resign from office 8 Peggy Kerns, “Revolving Door Laws”, nor, lieutenant governor, secretary of state, from becoming a paid lobbyist for the January 2009, National Conference of and attorney general) are limited to two remainder of the term of office from State Legislatures. www.ncsl.org/ four-year terms for each office. which the person resigned. default.aspx?tabid=15312

4 CRC Special Report on Michigan Constitutional Issues employment opportunities after agencies (31 states) and/or lob- ment. Despite the existence of relatively short careers in public byists (18 states). 9 the Board, no single body handles office. Furthermore, they argue ethics issues for all public employ- that most legislators have good According to a 2007 study by The ees in the state. A constitutional character and qualifications and Center for Public Integrity, only convention would likely consider these individuals would make four states (Idaho, Michigan, creating such a body for Michi- good lobbyists without breaching Utah, and Vermont) do not re- gan and defining its powers and the public trust while in office. quire any public disclosure of fi- duties in the state’s Constitution, nancial information by their gov- in much the same way that other Personal Financial Disclosure ernors.10 Whether financial states have done. for Elected Officials disclosure requirements for public officials should be in statutory According to the NCSL, 40 states Personal financial disclosure laws or constitutional law is a matter (including Michigan) have inde- require public officials to make for debate. All states with such pendent ethics oversight commis- certain personal financial records requirements include them in sions and in 35 of these states available for examination by the statute and a convention could (excluding Michigan) the commis- general public. Such laws are consider whether to include such sion has jurisdiction over legisla- different and separate from cam- reporting requirements in the tors.11 In addition to public offi- paign finance laws that apply to Michigan Constitution. cials, some of these bodies have office seekers. The former deals jurisdiction over lobbying laws directly with the records of an Ethics Commission also. The commissions vary in elected official as a private citi- size, but usually consist of be- zen whereas the latter set of laws In 1973, Governor Milliken signed tween 5 and 12 private citizens focus on financial records of a the State Ethics Act (Public Act appointed by legislators or other specific campaign. 196 of 1973), which established the Michigan State Board of Eth- state officials. Their powers and According to the NCSL, Center on ics. The Board determines the duties also vary but generally Ethics in Government, only three ethical conduct of classified or consist of the authority to review states (Idaho, Michigan, and Ver- unclassified state employees and public officials’ financial disclosure mont) do not require state legis- public officers of the executive statements, to accept and inves- lators to make their personal fi- branch of Michigan state govern- tigate ethics complaints, and to nancial records available. ment who are appointed by the regulate lobbyists. Forty-five states require elected governor or another executive In addition to the Michigan State officials to release annual reports department official. The Board Board of Ethics, other entities in of their personal finances, while does not have jurisdiction over Michigan exercise power to inves- two states (North Carolina and state elected officials in Michigan tigate ethics complaints of public North Dakota) only mandate re- (legislative, judicial, executive) or officials. For example, both leg- ports during an election year. In employees and elected officials at islative chambers have commit- terms of content, states vary con- the various levels of local govern- tees with jurisdiction over ethics siderably as to the information matters, the Senate Government that they require to be reported, Operations Committee and the but most require personal income information and 31 states require 9 National Conference of State Legisla- financial data about legislators’ tures, www.ncsl.org/programs/ethics/ fd_home.htm spouses and dependents. The 11 Nicole Casal Moore and Peggy Kerns, NCSL also points out that some 10 The Center for Public Integrity, States Legisbrief Vol. 14, No. 23, “State Ethics state personal disclosure laws of Disclosure, Commissions”, National Conference of cover connections with state www.projects.publicintegrity.org State Legislatures, April/May 2006.

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House Constitutional Law and Section 30), which has jurisdic- and preserving public confidence Ethics Committee. The 1963 tion over all Michigan courts and in the court system.12 Constitution creates the Judicial is responsible for promoting the Tenure Commission (Article VI, integrity of the judicial process 12 www.jtc.courts.mi.gov/

Conclusion

Article XI does not contain any lic Officers and Employment” have for some time to come. However, obsolete or non-functioning sec- served Michigan citizens well. should a convention be called, tions. While it has been the sub- Since the adoption of the 1963 convention members would be ex- ject of a two amendment attempts Constitution, nothing in Article XI pected to deliberate the issues sur- over the years (one successful and has risen to the level of “crisis” rounding the state’s civil service one not), the article and its vari- and the current provisions can be system and ethics in the public ous provisions dealing with “Pub- expected to serve the voters well sector.

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No. 360-15 A publication of the Citizens Research Council of Michigan October 2010 Fifteenth in a series of papers about state constitutional issues ARTICLE XII – AMENDMENT AND REVISION

In Brief

Article XII is the only article of the 1963 Michigan Constitution that does not relate to the structure or powers of government or to the rights of citizens. It provides for the process of altering the Constitution, either through amendment, which can occur as the result of legislatively-referred proposals or voter-initiated proposals, or revision, which can occur by means of a constitutional convention.

The principal challenge that would be faced by a constitutional convention in considering constitutional amendment and revision would be that of finding the appropriate degree of difficulty in adopting constitutional changes in order to maintain a proper balance between the roles of the Constitution as a governing document of the state with enduring principles and one with provisions relevant to changing economic, social, and political environments.

Introduction Regardless of how carefully drafted a state consti- ronment within which it exists. tution may be when it is adopted, it will be necessary or appropriate to change it from time to time. Alteration of individual provisions or provisions related Evolving social, economic, or political conditions will to each other is called amendment. More extensive necessitate addition, deletion, or alteration of provi- change, altering several unrelated provisions, is called sions to assure that the constitution provides for the revision. Article XII of the 1963 Michigan Constitution kind of state and local governmental structure and sets forth the ways in which amendment and revision authority required to remain relevant to the envi- of the basic Michigan governing document may occur.

Amending a Constitution

Extent of change A constitutional amendment can also encompass several sections of one or more articles in changing A constitutional amendment can be very specific. a particular policy. For example, Proposal E of 1978 For example, Proposal D of 1978 changed one num- (the Headlee Amendment) altered Section 6 of Ar- ber in Article IV, Section 40, thereby increasing the ticle IX and added ten new sections to that article in minimum drinking age from 18 to 21. instituting a policy of tax limitation. In 1992, Pro-

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues posal B amended one section in gress) that have been found in 1970, which prohibited public aid each of four articles (II, IV, V, and violation of the U.S. Constitution. to nonpublic schools and stu- XII) in order to establish term lim- It would be desirable to amend dents, might be considered an its in Michigan. the Constitution to remove the elaboration or extension of the unconstitutional language in or- provision in Article I, Section 4, A question arises when an at- der to assure that all of the pro- which prohibits public aid to “any tempt is made to present to the visions in the Constitution are religious sect or society, theologi- voters an amendment that would actually operable. Despite many cal or religious seminary.” change several unrelated sections recommendations to do this, of the constitution. Is it amend- however, neither the legislature Amend provisions in original ment? Or, is it revision, which nor the voters have placed such constitution that could be might require consideration by a a “clean-up” amendment on the considered statutory in nature constitutional convention? Michi- ballot. The 1963 Michigan Constitution gan voters have never really been contains many sections of mate- faced with such a proposal, but Add or alter basic provisions rial, some of it carried over from in 2008, a wide-ranging voter-ini- of governance the 1908 Constitution, that could tiated proposal (Reform Michigan A state constitution contains ba- have been left to statute. For Government Now!) that would sic provisions of governance; that example, a 1954 amendment to have amended many unrelated is, provisions that establish the the 1908 Constitution established articles and sections, received basic structure of government, its a 3 percent on the tax on gross enough signatures to make it to powers, and the rights of citizens, taxable sales of tangible personal the ballot, but was ruled ineligible and which should not be alterable property. The 1908 Constitution by the courts on technical by the legislature acting alone. was again amended in 1960 to grounds. The distinction between Occasionally, basic provisions increase that limitation to 4 per- amendment and revision consti- may be expanded or made more cent. Article IX, Section 8, of the tutes a gray area. explicit by amendment or new 1963 Constitution originally pro- provisions may be added. This vided for a continuatin of the 4 Purpose of change does not mean that a “basic” prin- percent rate limit. In 1994, Pro- The Michigan Constitution can be ciple will always be posal A amended Section 8, add- and has been amended in order uncontroversial. For example, the ing a 2-percent additional sales to accomplish one or more of sev- constitution is the appropriate tax dedicated to the School Aid eral purposes: place to provide for the number Fund. Although an alternative to of terms elected officials may Proposal A, increasing the per- “Clean up” serve. Proposal B of 1992, which sonal income tax, could have established term limits for elected been accomplished by statute The Michigan Constitution of executive branch officials and leg- because no constitutional limit on 1963 contains several provisions islators, changed the constitu- the rate of the personal income (e. g., minimum voting age of 21, tional policy from unlimited terms tax exists, using the sales tax for county board of supervisors cho- to very limited numbers of terms that purpose necessitated a con- sen from governmental units, for these officials. Proposal C of stitutional amendment. term limits for members of Con-

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Place statutory policy in the by the legislature.) Two kinds of those funds for purposes Constitution, beyond the statutory material have been added other than those for which reach of the legislature and to the Michigan Constitution: they were created. the courts 2. New policy not already in stat- 1. Existing statutes. Example: Although the alternative of the ute. Example: Proposal Eight sections of Article IX 2008-02, a voter-initiated statutory initiative exists in the (35, 35a, and 37-42), contain- Michigan Constitution, interest proposal, added a Section 27 ing over 3,100 words, contain to Article I to allow human groups often choose to propose language that had been pre- amendments to the Constitution in embryo and human embry- viously adopted by the legis- onic stem cell research. This order to insulate favored policies lature in statute providing for from future change by the legisla- new section contains several various recreation and con- provisions regarding the con- ture or the courts. (Aside from servation funds and the Vet- another vote of the people to duct of this kind of research. erans’ Trust Fund. From 1984 All of this could have been ac- amend or repeal voter-initiated to 2006, in a series of four laws, laws adopted by statutory complished by statute, either lengthy amendments (all pro- legislatively-adopted or voter- initiative may not be amended or posed by the legislature), repealed except by a three-quar- initiated, but the sponsors of these statutes were elevated the initiative feared alteration ters vote of each house of the leg- to constitutional status in or- islature, a high bar, but one which of a statute on this subject by der to prevent future legisla- future legislatures. has been cleared. Most voter-ini- tures from using balances in tiated statutes have been amended

Provisions of Article XII

Article XII contains three opera- Section 2: Amendment by pe- receive the petitions at least tive sections: tition and vote of the electors 120 days before the date of (Voter initiative) the election at which the pro- Section 1: Amendment by posed amendment is to be Petitions containing signatures legislative proposal and vote voted on; the validity and suf- of registered electors may be of the electors ficiency of the signatures used to propose constitutional must be determined and an- If a proposed constitutional amendments. A petition must: nounced at least 60 days be- amendment is approved by two- • Include the full text of the fore the election thirds of the members elected to proposed amendment and serving in each house of the • Subsequent to approval by the legislature, it is to be submitted Be signed by registered elec- Board of State Canvassers: to the electors in no less than 60 tors in number equal to at days for consideration at the next least 10 percent of the total vote cast for governor at the • The proposed amendment, general election or at a special existing provisions of the Con- election as determined by the leg- last general election at which a governor was elected stitution that would be altered islature. If approved by a major- or abrogated by the amend- • Be filed with the person au- ity of the electors, the amendment and the ballot language thorized by law [currently the ment will become part of the is to be published as provided Board of State Canvassers in Constitution 45 days following the by law election. the Department of State] to

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• A “true and impartial” state- ceiving the greatest number of Tuesday in October following the ment of the purpose of the yes votes is to prevail. election of delegates. It is this proposed amendment in not provision that has triggered Pro- more than 100 words is to be Section 3: General revision of posal 2010-01 on the November prepared for the ballot ques- the Constitution 2010 ballot. tion. (Statute requires that Every 16 years, beginning in (There is also a Section 4 in Ar- this be prepared by the Board 1978, or at other times as may ticle XII. It does not relate to of State Canvassers.) be provided by law, the question the process of altering the Michi- of a general revision of the Con- If the proposed amendment is gan Constitution. It was placed stitution is to be submitted to the approved by the voters, it be- in the Constitution by Proposal B voters. If the question is ap- comes part of the Constitution 45 of 1992 and provides that, if any proved, delegates are to be days following the election. If two substantive part of the term lim- elected on a partisan basis within or more amendments approved its amendment is declared invalid 6 months and a Constitutional by the voters at the same elec- or unconstitutional, the remain- Convention convened on the first tion conflict, the amendment re- ing parts will remain in force.)

Modes of State Constitutional Amendment

All states have provisions for voter initiative for constitutional For legislatively-referred amend- amending their constitutions. All amendments, although three ments: states provide for legislatively-ini- states—Illinois, Massachusetts, • Multi-session approval require- tiated methods of amending the and Mississippi—have provisions, ments/extraordinary majority constitution. All states, except either substantive or procedural, requirements. State constitu- Delaware, require voter approval that greatly constrain its use. tions may require that an of proposed constitutional Because it adds a whole new av- amendment be approved in amendments. The differences, enue for proposing amendments, more than one session of the then, in amendment procedures the presence or absence of the legislature (Indiana goes fur- among the states are largely de- initiative is a significant factor in ther and requires an election fined 1) by whether the voter ini- determining the ease with which to intervene between approv- tiative is available and 2) by the a state constitution can be als) before it can be submit- kinds of obstacles that must be amended. ted to the voters. They may overcome in order to amend the also require approval by ex- constitution. Procedures for Amendment traordinary majorities (in (“Obstacles”) Michigan, two-thirds of each Voter Initiative house) for submittal to the Amending a state constitution voters. These requirements A product of the Progressive Era should present obstacles, but not often appear to be alternatives (late-19th and early-20th Centu- insuperable ones. Amendment in that states with multi-ses- ries), the voter initiative was first should ideally negotiate the fine sion requirements tend to re- adopted in South Dakota in 1898. line between maintaining the fun- quire only simple majority Four years later, Oregon adopted damental, enduring nature of a votes of the legislature, while the initiative and, over the follow- constitution and the necessity of those with extraordinary ma- ing decade, 13 more states, in- keeping it vital and relevant. jority requirements tend to cluding Michigan, almost all in the States vary in the kinds of ob- require only one vote. In Midwest and Far West, followed stacles that must be overcome in some states, the alternative is suit. Presently, 18 states have the order to amend their constitutions: made explicit; if the legislature

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can muster the required ex- ever, using the 12 states that a proposed constitutional traordinary majority, it needs use the last vote for governor amendment. Three, however, only one vote; if it can achieve as the denominator, two re- pose an additional requirement only a simple majority, it will quire 15 percent, one requires that the “yes” votes on the need an additional vote. 12 percent, five (including amendment also equal at least Michigan) use 10 percent, and a certain percentage of the to- For voter-initiated amendments: four require 8 percent. tal votes cast at the election. • High signature requirements. • Signature distribution require- New Hampshire requires two- Every state with the initiative ments. Half of the states with thirds voter approval of a pro- requires that the number of the initiative require some posed amendment. Florida re- valid signatures on the peti- degree of geographic distri- quires two-thirds voter tion equal a percentage of bution of the signatures. approval of an amendment cre- some verifiable measure. These provisions typically re- ating a “new state tax or fee” Typically, this is a percentage quire that a minimum per- and, in 2006, Florida adopted of the vote in the previous centage of the signatures a constitutional amendment reelection for some political of- come from a certain propor- quiring 60 percent voter ap- fice, usually governor (al- tion of counties or congres- proval of any proposed consti- though one uses the U.S. sional districts. Michigan has tutional amendment.1 Finally, presidency and one uses the no such requirement. Nevada requires majority voter secretary of state). One state approval in two successive uses state population. Be- Voter approval requirements: elections. cause of the variability in the • Extraordinary election require- denominators of these frac- ments. Most states, including 1 tions, it is difficult to make di- Ironically, the 2006 Florida amendment Michigan, require only a ma- requiring 60 percent voter approval of rect comparisons among the jority of those voting on the constitutional amendments was, itself, various requirements. How- issue in one election to approve adopted only by a margin of 58-42.

Constitutional Convention Issues

The basic question concerning stitution is nevertheless accumu- requirement it shares with 13 other the process of altering the Michi- lating a disproportionate number states. Its signature requirement gan Constitution is whether it is, of provisions that should have for voter-initiated amendments is by some standard, too easy to do been left to statute if, in fact, they about average. And it does not so. The 1963 Constitution has should have been adopted at all. have multi-session approval for leg- been amended 31 times since its In addition, the Michigan Consti- islatively-proposed amendments, adoption and, while this fre- tution has become a target of does not have signature distribu- quency does not appear to be out national groups wishing to estab- tion requirements for voter-initiated of line with other states,2 it may lish their favored policies in the petitions, and does not have ex- be argued that the Michigan Con- constitutions of those states that traordinary election requirements. have the initiative. In a sense, the nature of the cur- Of the provisions used by states to rent Michigan Constitution oper- 2 For example, the Florida Constitution, make amendment of their consti- ates as a deterrent to making adopted in 1968, has been amended 115 tutions more difficult, the only one amendment more difficult. So times. Other states: Missouri (1945) 115 used by Michigan that is relatively much detailed policy, especially in times; Montana (1972) 30 times; North stringent is the two-thirds vote re- Article IX (Finance and Taxation), Carolina (1970) 34 times; Virginia (1970) 43 times. (Source: Council of State Gov- quirement in each house for legis- is contained in the document that ernments, Book of the States, 2010). latively-referred amendments, a when many aspects of taxation

5 CRC Special Report on Michigan Constitutional Issues and intergovernmental finance, terested parties before they gambling will take place. for example, require change, it are submitted to the voters. Because the Bureau of State cannot occur without constitu- Voter-initiated proposals vary Lottery is responsible for ap- tional amendment. To make widely in the degree to which proving new games, Proposal amendment more difficult in the they are subject to profes- 2004-01 introduced the concurrent Constitution, or one like sional review and, while many cept of voter approval of ad- it, then, would risk making per- are carefully drafted, it is clear ministrative actions as con- manent policies that should be that others have not been trasted with legislative subject to change. drafted with adequate care. actions. Since there is presently no Voter Initiative real way of keeping issues off • States with the initiative have the ballot simply because of become targets of organiza- The threshold issue in any discus- poor drafting, the opportunity tions with national agendas sion of whether to make the Michi- of placing inappropriate lan- that would likely be unsuc- gan Constitution more difficult to guage in the Constitution is cessful if legislative approval amend is whether to retain the greatly increased. were required. Term limits, voter initiative. Michigan has had promoted by an organization a functioning initiative provision in • Voter-initiated proposals have called U.S. Term Limits, are its Constitution since 1913. Since become a gateway to in- in effect in 15 states. In 13 then, there have been 67 voter- creased requirement of voter of those states, including initiated proposals to amend the approval. Some voter-initi- Michigan, the policy was Constitution (41 under the 1908 ated proposals have con- placed in the constitution via Constitution; 26 under the current tained requirements for voter initiative petition. Only Loui- Constitution). Of these, 20 were approval of certain govern- siana and Maine have term approved (10 under each Consti- mental actions normally re- limits that were not proposed tution), a success rate of 30 per- served to elected bodies, usu- by the initiative. cent. Legislatively-referred pro- ally tax increases. Most were posals over that period had a defeated at the polls, but the Other recent proposals that success rate of 63 percent (80 successful Headlee Amend- had roots outside of Michigan approvals in 127 attempts). Thus, ment of 1978 instituted the included Proposal 2004-02 while the initiative has been used necessity of local voter ap- (defining what can be recog- frequently, its relatively low rate proval of any new tax or in- nized as marriage or similar of success suggests that voters do crease in an existing tax union) and Proposal 2006-02 exercise a degree of discretion above that authorized by law (banning affirmative action when deciding to amend the or charter. programs). state’s constitution. A potentially significant pre- • The number of signatures that The initiative raises certain issues: cedent was established by a petition secures has come Proposal 2004-01, which re- to be a function of the amount • Voter-initiated proposals do quires that no state law that of money available to pay for not receive the scrutiny and authorizes any form of gam- circulators rather than broad- refinement to which legisla- bling nor any new state lot- based support for the pro- tive proposals are subjected. tery games utilizing table posal. Signature requirements Joint resolutions are drafted games or player operated were originally intended to by lawyers in the Legislative mechanical or electronic de- demonstrate broad initial sup- Service Bureau, made subject vices be established, without port for a ballot proposal. The of public hearings, debated in both statewide voter approval rise of paid circulators of peti- both houses of the legislature, and voter approval in the tions has brought this original and scrutinized by other in- township or city where the intent into question.

6 CRC Special Report on Michigan Constitutional Issues

Increasing Requirements for • Law Revision Commission, Clearly, controversy would arise the Voter Initiative whose purpose is to aid the if such a commission were to find Legislative Council in its that a proposed amendment was Signature Requirements charge (Article IV, Section 15) flawed in some way. Such “flaws” “to periodically examine and could cover a wide range, includ- If it is concluded that the initia- recommend to the legislature ing, for example: tive should be retained, a consti- revision of the various laws of tutional convention may wish to the state.” The Commission • Spelling, punctuation, and consider adopting more demand- consists of two members grammar ing obstacles to placing issues each from the Senate and the • before the voters. Based on the Vague or misleading House of Representatives, provisions in other states, such language plus four non-legislators. provisions might take the form of: • Excessive detail While the legislation creating • • Inappropriate reference to Increased signature require- the Commission (Public Act another section of the ments on petitions; 268 of 1986) does not include Constitution or to a non- • Geographic signature distri- review of proposed constitu- existent section bution requirements tional amendments, such a • role might be added. Conflict with existing Substantive Review provisions of the Michigan • Constitution While adoption of increased sig- Joint Legislative Commission or • nature requirements might make Legislatively-Established Com- Conflict with the U.S. it more costly or time-consuming mission, whose purpose would Constitution to gather the required signatures, be to review proposed amend- • Amendment of an excessive it would not address the issue of ments and to recommend number of provisions, which the standard of drafting of voter- changes to the Constitution. should require a initiated proposals, an issue that constitutional convention • Gubernatorial Commission. could become quite subjective. • Similar in purpose to the leg- Bad public policy The current Constitution does not islative commission, but ap- provide for substantive review of pointed by the Governor. It would be difficult to reconcile voter-initiated proposals, provid- a full-blown initiative process with ing only that “any such petition (Florida has a Constitution Revi- a commission powerful enough to be in the form, and shall be sion Commission, consisting of 37 prevent voter-initiated proposals signed and circulated in such members appointed by the Gov- from reaching the ballot. Prob- manner, as prescribed by law.” ernor, the Speaker of the House ably the only tool available to Voter-initiated proposals have of Representatives, the President such a commission would be the made it to the ballot with obvi- of the Senate, and the Chief Jus- ability to publicize its findings so ous drafting problems and, while tice of the Florida Supreme Court. that the electorate or the courts most have been defeated, the It meets periodically to determine would take them into account. possibility exists for a seriously whether the Florida Constitution inappropriate measure to be should be amended or revised. Constitutional Revision adopted. Such a commission could be em- The frequency of constitutional ployed in reviewing proposed Review of the substance of revision varies widely across the amendments.) amendments proposed by initia- nation. Michigan is working on tive before they are placed on the its fourth constitution since 1835. ballot has been proposed. In Massachusetts still uses its first, 1995, the Citizens Research adopted in 1780 and seven years 3 See Unfinished Business: Revising the Council reviewed three such pro- Michigan Constitution. Council Com- older than the U.S. Constitution. posals:3 ments No. 1035, February 1995. Eighteen other states still use

7 CRC Special Report on Michigan Constitutional Issues their first constitution. At the 1994) have been extensive, of Representative and Sen- other extreme, Louisiana is on its amending several sections, ate districts in a partisan eleventh constitution (current one but the provisions were all election. Consideration adopted in 1974) and Georgia is related. The unsuccessful might be given to removing on its tenth. The other states fall Reform Michigan Government that requirement. between these. The significance Now! proposal of 2008 proof constitutional revision, then, posed to amend many unre- • Should provision be made for varies from state to state. lated sections of the Consti- a Constitutional Revision tution, which led to criticism Commission? Florida has a In Michigan, constitutional revi- that it was an attempt to re- multi-branch, bipartisan Con- sion is to be accomplished by a vise the Constitution without stitutional Revision Commis- constitutional convention as pro- a process, namely a conven- sion, which met first in 1997- vided for in Article XII, Section 3. tion, that would permit due 98 and which is scheduled to A constitutional convention may consideration of such exten- meet every 20 years to pro- wish to consider a few issues re- sive change. pose changes to the Florida garding revision: Constitution. Such a commis- • Should election of delegates sion could bring greater au- • Should the definition of revi- to the constitutional conven- thority to proposed changes, sion be refined? At present tion occur in a partisan elec- either amendment or revi- there is no bright line distin- tion? The Constitution re- sion, than any body outside guishing amendment from quires that delegates to a of a constitutional convention. revision. Some amendments constitutional convention be (for example, Proposal A of chosen from Michigan House

Conclusion

The Constitution, as the basic can rob the Constitution of these keep the Constitution relevant governing document of the state, attributes. A constitutional con- while retaining its role as the fun- should be durable, flexible, and vention would be faced with the damental determinant of the understandable to the average problem of providing for an structure and power of Michigan citizen. Excessive amendment amendment process that would government.

8 CRC Special Report Michigan Constitutional Issues

No. 360-16 A publication of the Citizens Research Council of Michigan October 2010 Sixteenth in a series of papers about state constitutional issues STATEWIDE ISSUES ON THE NOVEMBER GENERAL ELECTION BALLOT PROPOSAL 2010-01

At the November 2, 2010 general election, the vot- egates would elect convention leadership from ers of Michigan will decide whether to call a consti- among their members, including a president, vice tutional convention to revise the 1963 Michigan Con- president(s), and committee chairs. They would hire stitution. That convention would be charged with administrative personnel and establish convention drafting a general revision of the state constitution rules or bylaws. The Constitution does not stipulate to be submitted to the voters at a later date. The a time limit or deadline by which a new constitution question was automatically placed on the ballot by should be drafted. a provision of the current state Constitution that requires the question to be asked every 16 years. Constitutional History Previous questions were defeated in 1978 and 1994 Michigan’s current constitution was narrowly adopted by sizeable majorities. by the voters in 1963. Since then, 80 proposed amendments have been initiated by the legislature Special Elections and voter-circulated petitions. The voters have If voters opt to call a convention, delegates would adopted 31 amendments, most frequently amend- be selected on a partisan ballot. Two more elec- ing Article IV (Legislative Branch) and Article IX (Fi- tions would be held for a special primary (February) nance and Taxation). Article I (Declaration of Rights), and a special general election (May) to select del- Article V (Executive Branch), and Article VIII (Edu- egates to the convention. Voters would select 148 cation) have been amended less frequently. In to- convention delegates: one in each district of the tal, 35 sections have been amended or added. Michigan House of Representatives and one in each district of the Michigan Senate. If Rejected If the question is rejected, Michigan’s state and local Delegates Convene governments will continue operating under the 1963 The Constitution provides that a convention would Constitution and this question will be slated to auto- convene in Lansing on October 4, 2011. The del- matically appear on the ballot again in the year 2026.

Constitutional Issues

Why might voters decide a new constitution is de- This analysis has identified provisions that are obso- sirable? Why might they decide that the current lete and violate provisions of the U.S. Constitution. constitution is satisfactory? It found sections and articles that have withstood the test of time and seem to be working as intended. From February to October of this year, the Citizens And it found provisions that have come under scru- Research Council of Michigan has reviewed the pro- tiny over the years and likely would be the subject visions in each article in the current constitution. of debate and reform efforts at a convention.

CITIZENS RESEARCH COUNCIL OF MICHIGAN

CRCMICH.ORG CRC Special Report on Michigan Constitutional Issues

Inoperative and Obsolete legislative redistricting that are not grant of autonomy to the state Provisions consistent with the federal consti- universities; tax and revenue limi- tution. Article VII (Local Govern- tations; dedication of tax rev- States have considerable discre- ment) creates county boards of enues to specific purposes; and tion in drafting the fundamental supervisors consisting of one a restriction on the use of emi- laws that govern their operations member from each organized nent domain for economic devel- and that afford rights to their citi- township and representation from opment purposes. zens. State constitutions, how- cities. Because those governments ever, are bound by the param- tend to have unequal populations, Policy Issues eters of the U.S. Constitution and this provision violates the federal may not violate the provisions Finally, a constitutional conven- one man-one vote requirements. contained in that document. State tion may be seen as an opportu- Above all else, a constitutional constitutional provisions that are nity to reexamine state policy on convention would aim to clean up obsolete because they violate the a number of basic issues funda- provisions such as these. provisions of the federal consti- mental to the operation of state tution make the language of a and local governments. A con- Highly Charged Provisions state constitution confusing and vention may wish to revisit: the misleading. These provisions The Constitution contains a num- direct democracy provisions re- should be removed or revised to ber of provisions that sharply di- lated to recall, referendum, and reflect the current status of law. vide certain segments of the voter initiation of legislation and state’s population. Depending on constitutional amendments; the Article II (Elections) contains two where one stands on these is- bicameral legislature and the size original sections related to the sues, Proposal 2010-01 may be of each house; the powers of the voting age and requirements for seen as a threat to, or an oppor- governor to reorganize state de- property ownership to participate tunity to, alter existing policy. partments; the funding of the ju- in certain elections that are obso- These provisions include: a ban dicial system; the types and pow- lete. It also contains a relatively on same sex marriage; a prohi- ers of local governments; new section that provides term bition on certain affirmative ac- education as a right that should limits for the state’s officials tion programs; authorization for receive preeminence in funding; elected to federal offices that the stem cell research; death penalty the power to tax and the limita- U.S. Supreme Court has deter- restrictions; creation of term lim- tions that should be placed on mined to be unconstitutional. Ar- its; a requirement for the elec- those powers; annual vs biennial ticle IV (Legislative Branch) con- tion of judges; provisions for lo- budgeting; and control of the tains provisions relating to cal government home rule; a state’s civil service system.

The constitutional convention process and each article of the Constitution is discussed in greater detail in CRC’s series of papers (available at www.crcmich.org/PUBLICAT/2010s/2010/rpt360.html). The Citizens Research Council of Michigan takes no position on the question of calling a constitutional convention. It is hoped that examination of the matters identified in CRC’s series of papers will promote discussion of vital constitutional issues and assist citizens in deliberations on the question of calling a constitutional convention.