Advisory Opinion on Constitutionality of 1975 PA 227
Advisory Opinion on Constitutionality of 1975 PA 227
Dissenting Opinion
(dissenting). The stated object of the Act is "to regulate political activity”.
I
To regulate the "political activity” of candidates, electors, appointed and elected public officials, lobbyists and others, is one object. "Legislation, if it has a primary object, is not invalid because it embraces more than 1 means of attaining its primary object.”
Spending money in a political campaign is political activity. Limitations on contributions and expenditures and the filing of statements on the organization of candidate committees and reporting of contributions and expenditures regulate political activity.
Establishing a state campaign fund, "with a diversion of certain taxpayer-designated portions of income tax revenues to the fund for distribution to qualifying gubernatorial candidates”,* *
Political activity does not end when the votes are counted and oaths of office are administered. Regulating conflicts of interest and requiring financial disclosure by public officials are efforts to assure that the post-election political activity of officials and those who would influence their "vote, official action, or judgment”
The function of the Political Ethics Commission is to implement the Act’s object of regulating political activity. The Commission is to prescribe and furnish the forms to be filed pursuant to the Act, accept and examine the filings, furnish the public with summaries of non-confidential statements and reports, promulgate rules to carry out the Act, issue declaratory rulings, investigate complaints of a violation of the Act and initiate measures to enforce it.
The Court concludes that the Act embraces more than one object. The Act does embrace many concepts and contains diversified provisions as does any law containing more than one idea or thought, or addressing a complex problem. Our duty, if we can fairly do so, is to coalesce these multiple concepts into one object.
"Numerous cases have held that the 'object’ of a statute is the general purpose or aim of the enactment”.
In oft-quoted language*
"This provision has proved a tempting source of attack on the validity of statutes with which parties are dissatisfied, for few laws of any length are enacted where the objection cannot be plausibly urged as to details and auxiliary provisions incidental to the main purpose of the legislation appearing in the body of the act and not itemized in the title. * * * While it contains various related provisions not directly indicated or enumerated in the title, under the construction of this constitutional requirement, as many times reviewed by this court, if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met. ” Loomis v Rogers, 197 Mich 265, 270, 271; 163 NW 1018 (1917). (Emphasis supplied.)
The Court relies on language in Kent County, ex rel Board of Supervisors v Reed, 243 Mich 120, 122; 219 NW 656 (1928): "The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other”.
In Bissell v Heath, 98 Mich 472, 476-477; 57 NW 585 (1894), this Court rejected a similar approach:
"It is suggested that the title expresses two objects, which might very well be the subjects of separate acts. It may be true, of any comprehensive statute, that it might be subdivided, and several laws in pari materia enacted in place of one; but it does not follow that an act which has but one general object is in conflict with the constitutional provision. As is stated in Cooley’s Constitutional Limitations (6th ed) p 175:
" 'There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.’ ”
The legislation under consideration in Attorney General v Weimer, 59 Mich 580, 588; 26 NW 773 (1886), formed a county out of three townships and organized other territory into new townships. In rejecting a contention that the statute embraced more than one object, the Court said that while "there was no necessary connection between the formation of the county and the organization of the new townships, still the connection is a natural one, and the latter is clearly germane to the former”. (Emphasis added.) The one-object limitation, said the Court, was not designed "to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus
The Court appears to recognize that codifications, such as the Michigan Penal Code,
A codification "necessarily embodie[s] various and somewhat diversified provisions”.
Codifications are not exceptions to the constitutional requirement that an act embrace only one object. The object of a codification, however, like a mosaic, is many-faceted.
The Court says that it does "not direct attention here to the second concept” ("[t]hat the object which the law embraced shall be expressed in its title”), but it nevertheless seeks to distinguish the codification cases from this case because the title of this Act does not contain the phrase "revise, consolidate and classify the laws”, generally found in most codifications. If that is a prerequisite, the Uniform Commercial Code would also fall because neither those words nor a facsimile appear in its title.
A law does not introduce "foreign and incongruous” matter if, said the Court in phrasing that obiter dictum, it "is confined to the means supposed to be important to the end indicated”.
“Not infrequently there will be a number of existing acts to which the new legislation would be germane, auxiliary or incidental. The legislative choice will not be held invalid merely because an alternative location for the new legislation might appear to some more appropriate.”
We rejected a claim that an amendment to the Revised Judicature Act creating the district court was defective insofar as it purports to vest criminal jurisdiction in that court: "the correct question is not whether the Legislature might have included provisions concerning the criminal jurisdiction of the district court in the Code of Criminal Procedure, but rather whether provisions establishing criminal jurisdiction are germane to the general purpose of the RJA”. (Emphasis supplied.)
The ultimate question here is not congruity, but whether there is one object. Asking the wrong question, the Court ordains a wrong conclusion.
There are five chapters in the Act. The Court does not advise the Legislature what division of the Act would be congruous. Are there one or more chapters that are congruous with each other? Are there any incongruities within any chapter? Nor does the Court indicate whether the defect it perceives can be remedied by adding to the title: "to revise, classify and consolidate”. If not, why not? How does this codification otherwise differ from other codifications?
The Court’s advisory opinion poses more questions than it answers, puts in question the validity of many statutes the constitutionality of which heretofore was undoubted and will encourage costly and time-consuming litigation. By changing
II
The Court commits itself to issue further opinions despite its declaration of unconstitutionality.
The Constitution permits an advisory opinion "on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into lawbut before its effective date”. Const 1963, art 3, § 8. (Emphasis supplied.)
Delegate (now Secretary of State) Austin in proposing on the floor the amendment adding "after it has been enacted into law” stated that the purpose was to "prevent the supreme court from getting involved until the legislative process was completed and they would be working with a law rather than some bills or proposals for legislation”.
The apparent purpose of issuing further opinions is to assist the Legislature in its further efforts. The Court cannot do so without "getting involved” in the legislative process.
"AN ACT to regulate political activity; to create a commission; to prescribe the powers and duties of the commission, the secretary of state, and other governmental bodies; to regulate campaign financing; to restrict compaign contributions and expenditures; to require campaign statements and reports; to prohibit anonymous contributions; to require certain anonymous funds to be transmitted to the state; to restrict use of public funds for mailings; to regulate campaign advertising and literature; to provide for segregated funds for political purposes; to create a state campaign fund; to provide for the use of public funds for political campaigns; to provide for reversion of or refunding of unexpended balances; to regulate conflict of interest, influence, and ethics of public officials, public employees, candidates, members of their immediate families, and businesses with which the individuals are associated; to regulate certain participation in making governmental decisions; to require financial statements; to regulate lobbying, lobbyists, and lobbyist agents; to require registration; to require persons to file certain statements and reports; to require persons to keep certain books and records; to permit governmental bodies to enact ordinances similar to matters covered by this act; to provide for defense funds; to provide for the collection of fees; to provide for the voiding of certain contracts; to prescribe remedies and penalties; to provide appropriations; and to repeal certain acts and parts of acts.”
Local No 1644, AFSC&ME, AFL-CIO v Oakwood Hospital Corp, 367 Mich 79, 91; 116 NW2d 314 (1962).
This is quoted from the opinion of the Court.
MCLA 169.121; MSA 4.1701(121).
MCLA 169.124; MSA 4.1701(124).
Local No 1644, AFSC&ME, AFL-CIO v Oakwood Hospital Corp, supra.
The People, ex rel the Secretary of State v The State Insurance Co, 19 Mich 392, 398 (1869).
Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). W A Foote Memorial Hospital, Inc v Jackson Hospital Authority, 390 Mich 193, 210; 211 NW2d 649 (1973).
National Loan & Investment Co v Detroit, 136 Mich 451, 452; 99 NW 380 (1904).
Advisory Opinion re Constitutionality of 1972 PA 294, supra, pp 488-489 (1973) (Levin, J., concurring).
See e.g., People, for use of Regents of the University of Michigan v Brooks, 224 Mich 45, 49; 194 NW 602 (1923); People v Palm, 245 Mich 396, 402; 222 NW 67 (1929); Young v Ann Arbor, 267 Mich 241, 244; 255 NW 579 (1934); Michigan Boiler & Sheet Iron Works v Dressler, 286 Mich 502, 508; 282 NW 222 (1938); Rohan v Detroit Racing Association, 314 Mich 326, 355; 22 NW2d 433 (1946); Benson v State Hospital Commission, 316 Mich 66, 78; 25 NW2d 112 (1946); Beacon Club v Kalamazoo County Sheriff, 332 Mich 412, 423; 52 NW2d 165 (1952); People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974).
The statute would in effect have restored the fee system to the Register of Deeds Office of Kent County, a result inconsistent with the objective expressed in the title. See People v Morton, 384 Mich 38, 40;
The quoted words appeared first in People, ex rel Drake v Mahaney, 13 Mich 481, 495 (1865).
People, ex rel Drake v Mahaney, supra.
The provisions proscribing arson, burglary, robbery and homicide could all be enacted in separate laws without any of them referring to or affecting the other. The recent criminal sexual conduct act, 1974 PA 266, MCLA 750.520a, et seq.; MSA 28.788(1), et seq., apart from repealing inconsistent and redundant legislation, stands as separate and independent legislation which does not refer to or affect the law of arson, burglary, robbery or homicide; surely, it is not invalid because it was added as an amendment to the Michigan Penal Code.
This Court has advised that the no-fault motor vehicle liability act, 1972 PA 294; MCLA 500.3101 et seq.; MSA 24.13101 et seq., did not violate the one object requirement even though it was added to the Insurance Code and it is possible to have an Insurance Code without a no-fault motor vehicle liability act and the latter could have been enacted in a separate law without either enactment referring to or affecting the other. Advisory Opinion re Constitutionality of 1972 PA 294, supra.
The provisions concerning decedents’ estates and fiduciaries have no necessary connection with juveniles. It would have been possible to deal with these two subject matters by separate laws without either of them referring to or affecting the other.
The statutory provisions abolishing the defense of governmental function resulting from the negligent operation of a motor vehicle (MCLA 600.2904; MSA 27A. 2904) and limiting the liability of a merchant for conduct involving persons suspected of larceny of goods (MCLA 600.2917; MSA 27A. 2917) could have been enacted as separate laws and have no necessary connection to an act dealing largely with the organization and function of civil courts. See People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
"The UCC replaced separate laws on sales, stock transfer negotiable instruments, bulk sales, warehouse receipts, bills of lading, bank checks, motor vehicle installment sales contracts, trust receipts, fraudulent conveyances, discharge of chattel mortgages, foreclosures of chattel mortgages, liens on inventory and many more. When first enacted, each of these separate laws stated its own separate object.”
Regents of University of Michigan v Pray, 264 Mich 693, 697; 251 NW 348 (1933).
Advisory Opinion re Constitutionality of 1972 PA 294, supra, pp 488-489 (1973) (Levin, j.( concurring).
True, the UCC is dubbed a "code” in the body of the act, and this act is not. We may properly look to the body of the law to determine its object — that is indeed where we should look. See In re Brewster
The acts repealed are:
(a) 1947 PA 214, licensing and regulation of the activities of “legislative agents” (lobbyists). MCLA 4.401-4.410; MSA 2.601-2.610.
(b) 1954 PA 116, Ch XXXIV, captioned Campaign Expenses, of the Michigan Election Law, MCLA 168.901-168.929; MSA 6.1901-6.1929.
(c) 1968 PA 317, regulating the conduct of public officials in respect to contracts with public entities. MCLA 15.321-15.330; MSA 4.1700(51)-4.1700(60).
(d) 1968 PA 318, conflicts of interests of members of the Legislature and state officials in respect to contracts. MCLA 15.301-15.310; MSA 4.1700(21)-4.1700(30).
(e) 1973 PA 196, standards of conduct for public officers and employees; creating a state board of ethics. MCLA 15.341-15.348; MSA 4.1700(71)-4.1700(78).
"An Act to regulate political activity * * * and to repeal certain acts and parts of acts.” See footnote 1.
People v Sowall, 279 Mich 261, 266; 271 NW 751 (1937).
Westgate v Adrian Township, 161 Mich 333, 335; 126 NW 422
The preceding quotations in this paragraph are from the opinion of the Court.
"The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity can not possibly be objectionable so long as it introduces nothing foreign and incongruous, but is confined to the means supposed to be important to the end indicated.” People, ex rel Drake v Mahaney, supra, p 496.
The phrase "no necessary connection”, also from People, ex rel Drake v Mahaney, supra, p 495, is also obiter dictum.
It appears from his writings that Justice Cooley was especially concerned with combinations of special interest groups to enact selective legislation benefiting their private interests.
1 Official Record Constitutional Convention 1961, p 1548.
Opinion of the Court
On August 27, 1975, Governor William G. Milliken signed Enrolled House Bill 5250.
We have granted a December 9, 1975, request of the House of Representatives to review ten specific questions of law concerning the constitutionality of the Act. 395 Mich 910 (1975).
As major portions of the Act were to have gone into effect on March 31, 1976 (the effective date of some provisions of the Act was to have been delayed until July 1, 1976), and the Act was likely to have had a profound effect on the upcoming elections, we believed it imperative to review the Act before its effective date. This case was submitted to our Court on March 5, 1976, after full briefing and oral argument by the Attorney Gen
In House Resolution 248, the House of Representatives phrased its first question of law as:
"Does Act 227 of the Public Acts of 1975, being § 169.1-169.200 of the Michigan Compiled Laws embrace more than one object in violation of § 24 of art 4 of the State Constitution of 1963 which reads [in pertinent part] as follows:
" 'Section 24. No law shall embrace more than one object, which shall be expressed in its title.’ ”
This constitutional section embodies two separate concepts:
1. That the law shall not embrace more than one object and
2. That the object which the law embraced shall be expressed in its title. We do not direct attention here to the second concept but only to the first, whether or not more than one object is embraced in this law.
Justice Sharp in Kent County, ex rel Board of Supervisors v Reed, 243 Mich 120, 122; 219 NW 656 (1928), notes that:
"it is to the body of the law that we must look to determine whether it embraces more than one object”.
In that case, Justice Sharp pointed out that the first section of the questioned Act imposed upon
"Can it be said that this repeal is so connected with the object as disclosed by the provision in § 1 that it may be held to be germane to it? We think not. The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other. The repeal of the local act was unnecessary to give legal effect to § 1. The two objects sought to be attained by the enactment have no necessary connection with each other, and, when grouped together in one act, clearly offend the constitutional provision.” Reed, supra, 122-123.
Both of the objects of the law were covered in the title. The Court concluded by saying:
"It is clear that two distinct and unrelated objects are embraced in the one act, and that it offends against the constitutional provision.” Reed, supra, 124.
In the briefs filed with this Court which discussed this issue, much attention was devoted to Fritz v Gorton, 83 Wash 2d 275; 517 P2d 911 (1974). However, in Fritz, the statute challenged was adopted by the initiative process by the voters of the State of Washington in the 1972 general election. Of the nine members of Washington’s Supreme Court, two dissented from the holding of constitutionality and three believed that the constitutional provision there in question:
"No bill shall embrace more than one subject and that shall be expressed in the title”,
In the brief filed by Common Cause, a numerical count of items in the title represented 28 as having been listed claiming that they were "germane to the purpose of reforming the Michigan political process”. The title of the Act does not mention reforming the political process. That brief referred to Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), in which the Court held that the subject matter constituted a code, a unified law. Justice Levin in a concurrence mentioned the justification for its constitutionality "Especially in the case of a codification”. In codes as enacted in Michigan, the Legislature tends to use in the title the words to "revise, consolidate and classify the laws” with respect to a particular object. Those words are typically found in code titles but not found here.
In the brief of the Attorney General urging a finding of unconstitutionality, a claim is made that this Act is exactly the type of legislation at which the framers of the Constitution directed their prohibition. We agree.
In addition to the multitude of varying activities sought to be regulated by this Act, the Act specifically repealed five individual and distinct acts. They concerned the licensing and regulation of legislative agents; the corrupt practice section of the general election law; two specific conflict of interest statutes; and an ethics act.
Severability is not available in instances chai
"It is impossible to tell which object was intended by the Legislature, and in such case both fall under the same condemnation.” Skinner v Wilhelm, 63 Mich 568, 572; 30 NW 311 (1886).
An early reference to the concept behind the constitutional prohibition is found in colorful language in People v Collins, 3 Mich 343, 384 (1854), a case in which the Court was evenly divided on the constitutionality of an act prohibiting the manufacture of intoxicating beverages and the traffic therein. The decision discussed other challenges, but in his opinion and indicative of judicial awareness of the problem, Justice Pratt said:
"This express and positive provision was incorporated into the constitution with the avowed intention on the part of the framers, of arresting, as far as possible, corruption and log rolling in legislation — you help me and I will help you — I will support your bill and help you pass it, if you will permit me to insert a section on a certain matter, etc.; a system of legislation that has often been carried so far as to become disgraceful to representatives and deeply injurious to the public.” People v Collins, supra.
Justice Cooley in People, ex rel Drake v Mahaney, 13 Mich 481 (1865), says with respect to the same provision of the Constitution of 1850:
"The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no
The act which Justice Cooley had under review was one whose general purpose was "to establish a police government for the city of Detroit”. He said:
"The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity can not possibly be objectionable so long as it introduces nothing foreign and incongruous, but is confined to the means supposed to be important to the end indicated.” (Emphasis added.) Mahaney, supra, 496.
This Court cannot engage in idle speculation as to whether, for instance, the provision relating to ethical conduct and conflict of interest contracts would on their own merits have been adopted by the Legislature, nor those relating to campaign contributions and expenditures, nor those establishing the state campaign fund for gubernatorial elections, nor those regulating lobbyists. Applying the tests used by this Court in Reed, supra, these provisions might have been enacted in separate laws without in any way referring to or affecting one another. The term "object” as used in art 4, § 24, was not meant to have unlimited breadth, for an exceedingly broad "object” could likely include several concepts that are wholly foreign and incongruous. That result is inconsistent with the purpose of the constitutional limitation. Some of the concepts sought to be obtained by the enactment have no necessary connection with each other. Nor can it be said that these varied concepts correspond to Justice Cooley’s particularities, but in
To say that the purification of the political process is the all-encompassing umbrella under which these various elements receive their protection is to beg the question. It is expected that much legislation within and without the scope of this Act is designed toward that worthy end.
This Court is mindful of the worthy purpose and high motivation of the Legislature and the proponents of the subject Act. It also is mindful of the basic dictates of the Constitution of this state. Our test cannot be one of policy but of constitutionality. On that test, the Act must fall.
MCLA 169.1-169.200; MSA 4.1701(1)-4.1701(200). For simplicity
Concurring in Part
(concurring in part and dissenting in part). I concur in the conclusion of the per curiam opinion that 1975 PA 227 is unconstitutional as violative of art 4, § 24 of the Constitution of 1963. I dissent from that portion of the opinion which states an intention to issue later a second opinion dealing with other raised constitutional issues, because I am persuaded that today’s determination of unconstitutionality terminates the statutory life of 1975 PA 227 and thus there remains no legisla
Reference
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- Advisory Opinion on Constitutionality of 1975 Pa 227 (Question 1)
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