Michigan Advisory Opinions September 04, 1979: AGO 5556 (September 4, 1979)

AGO 5556.

You have requested my opinion on whether House Bill 4551, which would amend 1954 PA 116, Sec. 951; MCLA 168.951; MSA 6.1951, by limiting the grounds for the recall of an elected official to misfeasance, malfeasance or nonfeasance in office, is in conflict with Const 1963, art 2, Sec. 8.

Const 1963, art 2, Sec. 8, provides:

'Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.'

1954 PA 116, Sec. 951, supra, requires that:

'Every elective officer in the state, except a judicial officer is subject to recall by the voters of the electoral district in which the officer is elected as provided in sections 951 to 976. A petition shall not be filed against an officer until the officer has actually performed the duties of the office to which elected for a period of 6 months during the current term of that office. An officer sought to be recalled shall continue to perfrom duties of the office until the result of the recall election is certified.'

In order to respond to your question, the historical background surrounding the adoption of Const 1963, art 2, Sec. 8 is helpful. Const 1963, art 2, Sec. 8 was preceded by Const 1908, art 3, Sec. 8, which provided:

'Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise, and to provide for the recall of all elective officers, except judges of courts of record and courts of like jurisdiction upon petition of 25 per centum of the number of electors who voted at the preceding election for the office of governor in their respective electoral districts.'

Recall was implemented under the mandate of Const 1908, by enactment of 1913 PA 325, Sec. 2, which provided that recall petitions must 'state clearly the reason or reasons for said demand.'

In Newburg v Donnelly, 235 Mich 531; 209 NW 572 (1926), People ex rel Elliott v O'Hara, 246 Mich 312; 224 NW 384 (1929), Amberg v Welsh, 325 Mich 285; 38 NW2d 304 (1949), and Eaton v Baker, 334 Mich 521; 55 NW2d 77 (1952), the Michigan Supreme Court has consistently held that the reasons denoted on a recall petition must be based on some act or failure to act, which, in the absence of sufficient justification, would warrant the recall. In these cases, the Court required that the conduct of the officer subject to a recall must rise to the level of misfeasance, malfeasance or nonfeasance in office.

Then in Wallace v Tripp, 358 Mich 668; 101 NW2d 312 (1960), the Michigan Supreme Court re-evaluated its position and stated:

'It is obvious at the start that the constitutional provision does not limit the right of recall to situations wherein facts could be alleged on the petition which constituted 'nonfeasance, misfeasance, or malfeasance.'

'Nor may any such limitation be found in the recall statute which was adopted pursuant to the constitutional mandate. . . . The statutory language did spell out the form of the petition to be filed, and did require that it 'shall state clearly the reason or reasons for said demand' (i.e., the demand for recall). . . .

Thus it is clear that the statutory intent was to have the issue over the conduct of the officer informatively presented to both prospective petition signers and recall voters.

The requirement of showing facts on the petition for recall constituting 'nonfeasance, misfeasance, or malfeasance' was a requirement added entirely by judicial decision. . . .' 358 Mich 668, 676-677

The Wallace Court then went on to hold that:

'The general rule appears to be that absent specific constitutional or statutory requirements, the sufficiency of reasons in a recall petition is for the determination of the electorate rather than the courts. . . .

Michigan's Constitution and statue require a clear statement of reasons for recall based upon an act or acts in the course of conduct in office of the officer whose recall is sought. Beyond this, the Constitution reserves the power of recall to the people.

'The basic power is held by the people in both our nation and our State. Our State Constitution as presently drawn places much confidence in the proper functioning of an intelligent and informed electorate. The recall provision is illustrative of that confidence. We feel bound to uphold its provisions against the aberration contained in the Newberg Case and subsequently followed in the cases cited.' 358 Mich 668, 680.

However, in Wallace, the Court did not decide whether the legislature has the power under its constitutional authority to establish by statute the requirements that recall petitions allege some form of misconduct in office. The debates of the Constitutional Convention are significant in determining the intent of the framers.

Const 1963, art 2, Sec. 8 was considered as Proposal 58-G. Delegate G. E. Brown offered an amendment to the Proposal which became the last sentence of this section. Explaining his amendment, Delegate G. E. Brown said:

'As I have said, like the initiative and the referendum, this is the right of the electorate to, first of all, initiate legislation without giving reasons, to review legislation without giving reasons, and to recall elective officers without giving reasons. By the court interpretation, it meant that at any time petitions for recall of an officer were filed with the appropriate officials, that then by action of mandamus or by a writ of injunction, or petition for a writ of injunction, that the sufficiency of the reasons stated in the petitions could be the subject of judicial inquiry and any recall proceedings could be nullified and stopped at that point if the court determined that the reasons were not sufficient. . . .

'Now, if we agree--and I think this committee should agree--that recall is a political question rather than a judicial question and that cause is not a feature of it or a factor or an element of it, it is necessary that we clarify the present language of the constitution. This is done by the amendment in the last sentence, and only the last sentence is additional language to the basic provision in the 1908 constitution, that sentence being, 'Any statement of reasons or grounds procedurally required shall be deemed to pose a political rather than a judicial question.'

'Many of you will ask, 'Why is it necessary to put this in?' I don't think that we can say that the legislature can do this because, of course, we have had this same language for many years and this was never completely clarified by the legislature, and through court interpretation over a 30 year period it has been in a state of flux, and finally determined for 26 years, approximately, as having an entirely different basis than it has now, otherwise previously having the element of cause in it.

The requiring of signatures, the burden that is placed upon the proponents of a recall movement, to recall an officer and call an election for that purpose, the burden of getting the signatures and getting people to sign for this purpose has proved to be a very adequate deterrent to any vexations or spurious recall movements. So I would therefore urge that the present amendment be put into the constitution as a declaration of policy, which is the judicial interpretation of this state at the present time. Thank you. 2 Official Record, Constitutional Convention 1961, pp 2263, 2264.

MR. G. E. BROWN: . . . As I say, the present judicial interpretation is as this section reads. It is a correct judicial interpretation. However, there has been this lack of complete unanimity among the courts as to what the language, as it originally was, means. And I think that since we have determined that this is the law today in this state and this is the way the law should be, I think that any person that isn't willing and doesn't have reasons for what he does in political office, even if it's only a matter of policy, that if he can't give reasons, if there isn't any justification for his actions, that whether or not this constitution--misfeasance, malfeasance or nonfeasance should preclude the electorate from having an opportunity to recall him.'

2 Official Record, Constitutional Convention 1961, p 2265.

Delegate Faxon moved to strike the amendment offered by Delegate G. E. Brown but the Faxon amendment was not adopted. II Official Record, Constitutional Convention, 1961, pp 2265-2266. Thereafter, the amendment offered by Delegate G. E. Brown was adopted by the convention.

Const 1963, art 2, Sec. 8, delegates the people's power to the legislature for the purpose of enacting laws to provide for the recall of elected officials. The effect of this delegation is merely to establish the procedure which must be followed to effectuate such recall. The people have, through the last sentence in art 2, Sec. 8, retained the power to determine the sufficiency of the reasons or the grounds for the recall.

Therefore, I am of the opinion that, if enacted, House Bill 4551 would be unconstitutional.

Frank J. Kelley

Attorney General