Michigan Advisory Opinions August 08, 1979: AGO 5533 (August 8, 1979)

Michigan Attorney General Opinions

1979.

AGO 5533.

You have requested my opinion on the following questions:

'(1) Does [Const 1963] art 1, Sec. 15, as approved by the people on November 7, 1978, contain the effective date sentence as provided in Enrolled House Joint Resolution Q, notwithstanding the omission of that sentence from certain pre-election materials and from subsequent certification by the Board of State Canvassers?

'(2) If [Const 1963] art 1, Sec. 15 was approved with the May 1, 1979 effective date sentence, does that sentence govern the effective date of Proposal K, notwithstanding the provision of [Const 1963] art 12, Sec. 1, which provides that a constitutional amendment 'shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved'?'

Enrolled House Joint Resolution Q proposed that a constitutional amendment be presented to the people of the State of Michigan which would amend Const 1963, art 1, Sec. 15, by denying bail for certain offenses and providing for the expediting of trials in cases when bail had been denied. House Joint Resolution Q states, in pertinent part, as follows:

'Sec. 15. No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except that bail may be denied for the following persons when the proof is evident or the presumption great:

'(a) A person who, within the 15 years immediately preceding a motion for bail pending the disposition of an indictment for a violent felony or of an arraignment on a warrant charging a violent felony, has been convicted of 2 or more violent felonies under the laws of this state or under substantially similar laws of the United States or another state, or a combination thereof, only if the prior felony convictions arose out of at least 2 separate incidents, events, or transactions.

'(b) A person who is indicted for, or arraigned on a warrant charging, murder or treason.

'(c) A person who is indicted for, or arraigned on a warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping with intent to extort money or other valuable thing thereby, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.

'(d) A person who is indicted for, or arraigned on a warrant charging, a violent felony which is alleged to have been committed while the person was on bail, pending the disposition of a prior violent felony charge or while the person was on probation or parole as a result of a prior conviction for a violent felony.

'If a person is denied admission to bail under this section, the trial of the person shall be commenced not more than 90 days after the date on which admission to bail is denied. If the trial is not commenced within 90 days after the date on which admission to bail is denied and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of bail for the person.

'As used in this section, 'violent felony' means a felony, an element of which involves a violent act or threat of a violent act against any other person.

'This section, as amended, shall not take effect until May 1, 1979.' (Emphasis added)

The legislature saw fit to include in the resolution the date of May 1, 1979, as the effective date of the amendment, should it be passed by the people of the state. The apparent legislative rationale to delay the effective date beyond the 45 day period provided by Const 1963, art 12, Sec. 1, was to allow time to bring any statutory inconsistencies into conformance with the new constitutional amendment.

The official enrolled version of House Joint Resolution Q was forwarded to the Secretary of State in order to permit the Department to comply with the notification, certification, and publishing requirements of 1954 PA 116, Secs. 648, 649, 707, 708 and 709, as amended by 1968 PA 45; MCLA 168.648-649; MSA 6.1648-1649; MCLA 168.707-709; MSA 6.1707-1709.

MCLA 168.648; MSA 6.1648 states that:

'The secretary of state, at least 60 days and not more than 90 days preceding any regular state or district primary or election, shall send to the county clerk of each county a notice in writing of such primary or election, specifying in such notice the federal, state and district offices for which candidates are to be nominated or elected, as well as any constitutional amendments and questions to be submitted thereat.'

MCLA 168.649; MSA 6.1649 states, in pertinent part, that:

'Whenever a proposed constitutional amendment or other special question is to be submitted to the electors of the state for popular vote, the secretary of state shall, not less than 49 days before election, certify the same to the clerk of each county in the state and shall at the same time prescribe the form in which such amendment or other special question shall be submitted. . . .'

MCLA 168.707; MSA 6.1707 states, in pertinent part, that:

'Whenever a proposed constitutional amendment or other proposition is to be submitted to the electors of the state for popular vote, the secretary of state shall, not less than 49 days prior to the date of the election at which such proposed constitutional amendment or other proposition is to be submitted, certify to the various county clerks the form of ballots to be prepared in connection therewith which shall have printed thereon a statement of such proposed constitutional amendment or other proposition in not to exceed 100 words, exclusive of caption, as provided in section 2 or article 12 of the state constitution, on a single ballot separate and distinct from the ballots containing the names of candidates or nominees for public office over which shall appear a suitable caption and under which shall be printed the words 'Yes ( )' and 'No ( )' in separate lines; and it shall be the duty of the various boards of county election commissioners to print such ballots for use in their respective counties. . . .'

MCLA 168.708; MSA 6.1708 provides that:

'The secretary of state shall duly prepare a concise statement setting forth the nature of any such proposed amendment or other proposition and shall send copies of said statement to the several daily and weekly newspapers published in the state, prior to the election, with a request that said papers give as wide publicity as possible to said proposed amendment or other proposition. Publication of any matter by any paper under the provisions of this section shall be without expense or cost to the state.'

In addition, MCLA 168.709; MSA 7.1709 provides that:

'The secretary of state shall also furnish the several county clerks in the state at least 2 copies of each such statement on paper suitable for posting for each voting precinct in their respective counties. The county clerk shall furnish the said copies of such statement to the several city and township clerks in his county at the time other supplies for the election are furnished, and said city and township clerks shall, before the opening of the polls on election day, deliver 2 copies of such statement to each voting precinct in his city or township, to the board of election inspectors of said precinct, who shall post the same in conspicuous places in the room where such election is held.'

Due to circumstances which have no bearing on this opinion, the Department of State, Elections Division, deleted that portion of House Joint Resolution Q which postponed its effective date until May 1, 1979 from all of the material sent to the news media for publication, from all of the printed material posted in the precinct voting locations and from the text of Proposal K which was printed on the official ballot. The text of the amendment as certified and furnished by the Department of State, Elections Division, was published as it appeared in House Joint Resolution Q, supra, except that the text omitted the last sentence thereof, which provided:

'This section, as amended, shall not take effect until May 1, 1979.'

The statement of purpose of the proposed constitutional amendment prepared by the Department of State, Elections Division, for designation on the ballot was published as follows:

'The proposed amendment would:

'1. Permit denial of bail to a person accused of:

'a. Murder, treason, armed robbery, criminal sexual assault 1st degree, or kidnapping for extortion;

'b. A felony involving an act or threat of violence if the person has been convicted of two crimes involving violence within the previous 15 years or is on bail, parole or probation for such a crime.

'2. Provide that trial must be commenced within 90 days after denial of bail or bail shall be set.

'Should this amendment be adopted?'

In accordance with 1954 PA 116, Sec. 486, as added by 1978 PA 482; MCLA 168.486; MSA 6.1486, the Board of State Canvassers on November 30, 1978, certified the language of the constitutional amendment, without the effective date provision, to the Secretary of State. The language certified by the Board of Canvassers was identical to House Joint Resolution Q except for the deletion of the last sentence which contained the proposed May 1, 1979 effective date.

There is nothing in Const 1963 or case law recognized by Michigan courts, which prohibits the postponement of the effective date of the operation of a constitutional amendment. Const 1963, art 12, Sec. 1, provides, in pertinent part, that:

'Amendments to the constitution may be proposed in the senate or house of representatives . . . If a majority of electors voting on a proposed amendment approve the same, it shall become part of the constitution and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved.'

In Demaggio v Attorney General, 300 Mich 251, 1 NW2d 530 (1942), the Michigan Supreme Court discussed the thirty day effective date provision found in Const 1908, art 17, Sec. 2 (fn1) with respect to a new constitutional provision which created the State Civil Service System (fn2) and which was to take effect at a point in time beyond the thirty day provision. The Court stated that:

'It seems clear that the purpose of the 30-day clause, Mich. Const. (1908), art. 17, Sec. 2, is to enable the public to become acquainted with the provisions of an amendment after it has been approved. There is nothing in the Constitution which prohibits the postponement of the effective date of the operation of the amendment. Article 5 of the Constitution of the United States provides that amendments shall become 'valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States,' yet the 18th amendment to the Federal Constitution prohibited the manufacture or sale of intoxicating liquors 'after one year from the ratification of this article.' In our opinion the electors in voting upon the civil service amendment intended that its effective date should be January 1, 1941, and there being nothing in our Constitution prohibiting such postponement, we hold that the will of the electors, so expressed, must govern.'

300 Mich at 256

The Court in DeMaggio cited as authority the case of State ex rel McNamara v Campbell, 94 Ohio St 403; 115 NE 29 (1916). The facts in Campbell are very similar to the situation presently under consideration. In Campbell, the Ohio General Assembly, by resolution, submitted a proposed constitutional amendment to the voters of the State of Ohio. The General Assembly's resolution also included a provision to postpone the effective date of the amendment beyond that which was provided by the Ohio Constitution. However, for some reason not discussed in the Court's opinion, the postponement clause was not contained in the ballot text of the amendment. The Ohio Supreme Court held that there was nothing in the Ohio Constitution which authorized the Ohio General Assembly to postpone the effective date of a constitutional amendment. In addition, the Court held that the date when a constitutional amendment is to become effective can be submitted to the electors for their consideration. If no effective date is provided within the text of the amendment, the effective date, as provided by the Ohio Constitution, will prevail.

The Campbell decision has been followed in recent decisions. In City of Euclid v Heaton, 15 Ohio St 2d 65; 238 NE2d 790 (1968), the Ohio General Assembly by joint resolution submitted a constitutional amendment to the Ohio voters. The resolution contained a provision that the amendment would not go into effect until a date later than the date established by the Ohio Constitution. The postponement provision was not included in the ballot text considered by the voters. The Ohio Supreme Court held that the postponement provision was inoperative and void unless it was also submitted to the electors and adopted by them. In State ex rel Schwartz v Brown, 32 Ohio St 2d 4; 288 NE2d 821 (1972), the Ohio Supreme Court followed both Campbell and Heaton by holding that the text as it actually appears on the ballot prevails as the true amendatory language even if it differed from that originally presented to the Attorney General and the Secretary of State for their review and approval.

In OAG, 1963-1964, No 4164, p 158 (July 26, 1963), the Campbell and DeMaggio cases were cited as authority when former Secretary of State, James M. Hare, was advised that he need not call for a convening of the Commission on Legislative Apportionment until after the January 1, 1964 effective date of Const 1963. Although the January 1, 1964 date was beyond the effective date for constitutional amendments as provided in Const 1908, it was the date specifically considered and voted upon by the electors.

Const 1963, art 12, Sec. 1 and Const 1908, art 2, Sec. 17 differ only in the amount of days which elapse after an election approving a proposed constitutional amendment before the amendment becomes effective. The holding in DeMaggio, supra, is still controlling.

In the questions you present, the May 1, 1979, effective date provision of House Joint Resolution Q was not stated in the text of ballot Proposal K or in any of the material circulated by the Secretary of State, and was neither considered nor voted upon by the electors in the November 7, 1978 general election.

Therefore, it is my opinion that the effective date of Proposal K is December 23, 1978 which was the date 45 days after the election as provided by Const 1963, art 12, Sec. 1.

It is further my opinion that a constitutional amendment may have an effective date beyond that which is provided in Const 1963, art 12, Secs. 1 and 2, provided that the effective date is considered and voted upon by the electors.

Frank J. Kelley

Attorney General

1. Const 1963, art 12, Sec. 2.

2. Const 1908, art 6, Sec. 22, now Const 1963, art 11, Sec. 5.