Michigan Advisory Opinions May 16, 1980: AGO 5713 (May 16, 1980)

AGO 5713.

1966 PA 293, as last amended by 1980 PA 7; MCLA 45.501 et seq; MSA 5.302(1) et seq, establishes procedures for the calling of an election for the submission to the electors of a county the question of electing a charter commission to frame a county home rule charter and for the election of charter commissioners.

Pursuant to the provisions of 1966 PA 293, supra, the Wayne County Board of Commissioners, on March 16, 1972, adopted a resolution calling for submission to the electors of Wayne County the question of electing a charter commission to frame a county home rule charter and for the election of charter commissioners. Thereafter, the Wayne County Apportionment Commission, on April 14, 1972, entered an order establishing charter commission districts based upon the 1970 United States official census. No appeal seeking judicial review of the order was sought in the Court of Appeals. When the electors voted upon the question of electing such a charter commission, the electors disapproved the proposition and the charter commissioners were never elected.

The Wayne County Board of Commissioners, on April 3, 1980, once again passed a resolution providing that the question of electing a charter commission to frame a county home rule charter to be submitted to the electors.

Based upon these facts, you request my opinion on the following questions:

1. Does 1966 PA 293, Sec. 5(7), as last amended by 1980 PA 7, preclude the county apportionment commission from reapportioning the charter commission districts in Wayne County in 1980 and may a person desiring to become a candidate for charter commissioner file petitions as a candidate from a district as determined by the 1972 order of the county apportionment commission?

2. When the 1980 United States Official Census figures become available in 1981, must the county apportionment commission reapportion the charter commission districts and would a new election of charter commissioners be required to be held in the county?

The authority of a county board of commissioners to enact a resolution providing for the submission of the question of electing a charter commission to frame a home rule charter for submission to the electorate of the county is conferred by 1966 PA 293, supra, Sec. 2. This section was not amended by 1980 PA 7.

Once the resolution calling for an election on such a question is adopted, 1966 PA 293, supra, Sec. 5, imposes certain duties on a county apportionment commission to establish charter commission districts within 30 days after adoption of the resolution. The Wayne County Apportionment Commission discharged its duty thereunder on April 14, 1972 by its order establishing the boundaries of the charter commission districts.

The records of the Court of Appeals indicate that no appeal seeking judicial review of the 1972 order of the Wayne County Apportionment Commission was ever filed. Under the plain language of 1966 PA 293, Sec. 5(g), supra, the order became final and shall be the official apportionment plan until the 1980 United States official census figures are available. Where the Legislature has spoken plainly, effect must be given to the definite and certain terms employed. City of Grand Rapids v Crocker, 219 Mich 178; 189 NW 221 (1922).

Since the Legislature amended 1966 PA 293, Sec. 5(b), (e) and (g), supra, by means of 1980 PA 7, supra, the impact, if any, of the amendments upon the official apportionment plan adopted by the Wayne County Apportionment Commission may best be assessed by comparing the provision before and after 1980 PA 7, supra, was enacted and became law on February 13, 1980.

Prior to amendment by 1980 PA 7, supra, 1966 PA 293, Sec. 5(b), (e) and (g), supra, provided as follows:

'(b) The county apportionment commission within 30 days after the adoption of the resolution by the board of supervisors shall establish charter commission districts equal to the number of commissioners to be elected. All districts shall be single member districts and as nearly of equal population as practicable. The latest official published figures of the United States official census shall be used in this determination, except that in cases requiring division of official census units to meet the population standard, an actual population count may be used to make such division. Other governmental census figures of total population may be used if taken subsequent to the last decennial United States census and the United States census figures are not adequate for the purposes of this act. The secretary of state shall furnish the latest official published figures to the county apportionment commission forthwith upon this act taking effect, and within 15 days after publication of subsequent United States official census figures.

'A contract may be entered into with the United States census bureau to make any special census if the latest United States decennial census figures are not adequate.

'Each district shall be contiguous, compact and of as nearly square shape as is practicable, depending on the geography of the county area involved and drawn without regard to partisan political advantage. Each city and township shall be apportioned so that it shall have the largest possible number of complete districts within its boundaries before any part of the city or township is joined to territory outside the boundaries of the city or township to form a district. Townships, villages, cities and precincts shall be divided only if necessary to meet the population standard.

'(e) Any registered voter of the county within 30 days after the filing of the plan for his county may petition the court of appeals to review such plan to determine if the plan meets the requirements of the laws of this state. Any findings of the court of appeals may be appealed to the supreme court of the state as provided by law.

'(g) Once an apportionment plan has been found constitutional and according to the provisions of this act and all appeals have been exhausted or if no appeal has been taken, when the time for appeal has expired, that plan shall be the official apportionment plan for the county until the next United States official decennial census figures are available, at which time a new apportionment plan under this act shall be accomplished by the county apportionment commission.

After their amendment and renumbering as subsections (2), (5) and (7) by 1980 PA 7, supra, 1966 PA 263, Sec. 5(2), (5) and (7), supra, read as follows:

'(2) The county apportionment commission, within 30 days after the adoption of the resolution by the county board of commissioners, shall establish charter commission districts equal to the number of charter commissioners to be elected. All districts shall be single member districts and as equal in population as practicable. The latest official published figures of the United States official census shall be used in this determination, except that in cases requiring a division of official census units to meet the population standard, an actual population count may be used to make the division. Other governmental census figures of total population may be used if taken after the last decennial United States census and the United States census figures are not adequate for the purpose of this act. The secretary of state shall furnish the latest official published figures to the county apportionment commission within 15 days after publication of subsequent United States official census figures. A contract may be entered into with the United States census bureau to conduct a special census if the latest United States decennial census figures are not adequate. Each district shall be contiguous, compact, and as nearly square in shape as is practicable, depending on the geography of the county area involved, and shall be drawn without regard to partisan political advantage. Each city and township shall be apportioned so that it shall have the largest possible number of complete districts within its boundaries before any part of the city or township is joined to territory outside the boundaries of the city or township to form a district. Townships, villages, cities, and precincts shall be divided only if necessary to meet the population standard.

'(5) Any registered voter of the county, within 30 days after the filing of the plan for his or her county, may petition the court of appeals to review the plan to determine if the plan meets the requirements of the laws of this state. A finding of the court of appeals may be appealed to the supreme court of this state as provided by law.

'(7) Once an apportionment plan has been found constitutional and not in violation of this act and all appeals have been exhausted or, if an appeal has not been taken, when the time for appeal has expired, that plan shall be the official apportionment plan for the county until the next United States official decennial census figures are available. When the next United States official decennial census figures are available, a new apportionment plan under this act shall be established by the county apportionment commission.

So compared, the legislative changes in 1966 PA 293, Sec. 5(2), (5) and (7), supra, are not significant. The 1972 apportionment plan adopted by the Wayne County Apportionment Commission remains the official apportionment plan. None of these provisions authorize the county apportionment commission to make changes in the official apportionment plan or to adopt a new apportionment plan until the 1980 United States official census figures become available. It is not expected that these official census figures will be available before 1981.

That this was the legislative intent is confirmed by a study of the legislative history of the enactment of 1980 PA 7, supra. It has been held that legislative intent may be determined by a study of the legislative history of a statute. Rapid R Co v Michigan Public Utilities Commission, 225 Mich 425; 196 NW 518 (1923). Senate Bill 652 was passed by the Senate only after a substitute and amendments were adopted. 1979 Senate Journal, No 113, p 2450. The House of Representatives also approved its own substitute, 1979 House Journal, No 134, p 3048, and it is the consideration of the substitute which underscores the legislative intent that official apportionment plans were to remain operative until the 1980 United States Official Decennial Census figures were to become available.

The House Substitute proposed to amend 1966 PA 293, 5(b), supra, renumbered as subsection (2), as follows:

Page 3a Line

'16 (2) The county apportionment commission, within 30 days after

17 the adoption of the resolution by the COUNTY board of

18 COMMISSIONERS, shall establish charter commission districts'

Page 4 Line

'1

2 equal to the number of CHARTER commissioners

3 to be elected. All districts shall be single member districts

4 and as equal IN population as practicable. The latest official

5 published figures of the United States official census shall be used in this

6 determination, except that in cases requiring A division of official census

7 units to meet the population standard, an actual population count may be

8 used to make THE division. . . .'

On third reading, Representatives Symons, Richard A. Young, Anderson, Mahalak, Sheridan and Owen moved to amend the House Substitute Bill as follows: 'Amend page 4, line 4 after 'THE' by striking out 'latest', and inserting '1980'.' This amendment failed on the following vote: Ayes 41; Nays 55. 1979 House Journal, No 134, p 3050. Thereafter, the House Substitute Bill was enacted without further significant change. 1979 House Journal, No 134, p 3057.

Passage of such resolution by a county board of commissioners imposes a duty upon a county apportionment commission under 1966 PA 293, Sec. 5(2) supra, to establish charter commission districts. Where an official apportionment plan adopted by the county apportionment commission in accordance with 1966 PA 293, Sec. 5, supra, is extant, the statute prohibits and county apportionment commission from adopting a new plan until the latest United States official census figures are available. However, had the Legislature amended 1966 PA 293, Sec. 5(2), supra, by approving the amendment proposed by Representatives Symons, Richard A. Young, Anderson, Mahalak, Sheridan and Owen as an approved part of amendatory 1980 PA 7, the legislative intent would be plain that even though a resolution were adopted by a county board of commissioners prior to the 1980 United States official census figures becoming available, the election of charter commissioners to draft the county home rule charter would have to await a new apportionment plan to be adopted by the county apportionment commission relying upon the 1980 official census figures becoming available, since the official county apportionment plan would have to be based upon the 1980 United States official census figures.

Thus, the intent of the Legislature is manifest that official apportionment plans adopted under 1966 PA 293, Sec. 5, supra, upon becoming final, would be operative until the 1980 United States official census figures become available in 1981.

This legislative mandate does not offend the Equal Protection Clause of the United States Constitution. The United States Supreme Court has recognized that where members of legislative bodies must be elected from districts on a one-man, one-vote standard, the reapportionment of the districts need not be performed more frequently than once every decade. Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964). Further, it has also been held that a state statutory scheme for the formulation of districts from which delegates are to be elected to a state constitutional convention to draft a state constitution for approval of the electors need not be conducted on a one-man, one-vote basis. Drishell v Edwards, 518 F2d 890 (CA 5, 1975), aff'd 425 US 956; 96 S Ct 1735; 48 L Ed 2d 201 (1976).

Thus, it must be concluded that a county apportionment commission has no authority to revise an official apportionment plan adopted in 1972 until the 1980 United States official census figures are available.

It is, therefore, my opinion that the Wayne County Apportionment Commission, in the absence of the 1980 United States official census figures, is without statutory power to reapportion the charter commission districts during 1980 and persons seeking nomination for office of charter commissioner may file petitions from the districts as determined in the 1972 order of the Wayne County Apportionment Commission.

Turning to your second question, the authority of a county apportionment commission to adopt an apportionment plan to establish charter commission districts is triggered by the resolution of a county board of commissioners adopted pursuant to 1966 PA 293, Sec. 2, supra, calling for an election to vote on the question of electing a charter commission to draft a county home rule charter for submission to the county electors.

Assuming the electors of Wayne County approve the question of electing a charter commission, the charter commissioners are required to be elected in accordance with 1966 PA 293, 5(3), supra; must hold their first meeting no later than 20 days after certification of their election, 1966 PA 293, supra, Sec. 9; complete their organization within 30 days thereafter, 1966 PA 293, supra, Sec. 10; and complete the draft of the proposed charter within 180 days after the completion of organization, 1966 PA 293, supra, Sec. 11.

It must be noted that 1966 PA 293, Sec. 10, supra, was amended by 1980 PA 7, supra. While the Legislature was aware of the impending 1980 United States official census, it did add subsection (4) to 1966 PA 293, Sec. 10, supra, to read:

'A charter commission elected pursuant to this act shall not remain in existence for more than 2 years after the date the charter commission is elected.'

When the Legislature enacted 1980 PA 7, supra, to amend 1966 PA 293, supra, it was cognizant of the impending 1980 United States official census, but did not add any requirement that upon completion of such census and the availability of its figures that a standing charter commission must be dissolved, the county apportionment commission reapportion the charter commission district anew and a new charter commission must be elected.

Assuming that the charter commission is authorized by the electors and that the commission has not completed its work when the 1980 United States official census figures become available in 1981, it must be concluded that 1966 PA 293, supra, as last amended by 1980 PA 7, supra, neither empowers the county apportionment commission to adopt a new apportionment plan nor requires the election of new commissioners thereunder.

On the other hand, assuming that the Wayne County electors disapprove the question of electing a charter commission to frame a county home rule charter in 1980, and that the Wayne County Board of Commissioners were to adopt a new resolution calling for an election on the question in 1981, the 1980 United States official census figures then being available, the Wayne County Apportionment Commission would be required to establish charter commission districts as equal in population as possible based upon the 1980 official census figures. 1966 PA 263, Sec. 5(2), supra.

It is my opinion, therefore, that, assuming the Wayne County Charter Commission is functioning when the 1980 United States official census figures become available, the Wayne County Apportionment Commission may not reapportion the charter commission districts and new charter commissioners may not be elected thereunder because 1966 PA 293, supra, does not so provide.

Frank J. Kelley

Attorney General