Michigan Advisory Opinions September 01, 1982: AGO 6103 (September 1, 1982)

Michigan Attorney General Opinions

1982.

AGO 6103.

You have requested my opinion whether 1982 PA 212 may be certified for placement on the ballot at the general election to be held on November 2, 1982, pursuant to Const 1963, art 4, Sec. 34. The Legislature declined to give 1982 PA 212, or any part thereof, immediate effect.

You advise that on July 19, 1982 the Executive Director of the Michigan Citizens Lobby filed a letter with your office objecting to the placement of 1982 PA 212 on the ballot for the reason that 1982 PA 212, enacting section 2, was not given immediate effect, pursuant to Const 1963, art 4, Sec. 27, and, therefore, does not authorize election officials to act on the measure until the expiration of 90 days from the end of the 1982 legislative session. In response to the Michigan Citizen Lobby's objection, you initially sought my advice on the matter on July 26, 1982. However, within two days of receipt of your request, the Michigan Chamber of Commerce, among others, filed an original complaint for mandamus in the Michigan Court of Appeals to compel the placement of 1982 PA 212 on the ballot. Consquently, I declined, at that time, to address the issue raised on the basis of the longstanding practice of this department to refrain from commenting on an issue before the courts.

On August 19, 1982, the Michigan Court of Appeals dismissed the lawsuit, without deciding the constitutional issue, and without prejudice to its renewal if certification has not been accomplished by the time statutorily prescribed. A motion for reconsideration was filed with the Michigan Court of Appeals on August 26, 1982. Application for leave to appeal was filed with the Michigan Supreme Court on August 27, 1982. The final day for giving notice to county clerks of the questions to appear on the November 2, 1982 general election ballot is September 3, 1982. Hence, you now renew your request for guidance.

As previously noted, this office does not issue opinions concerning issues being considered by the courts. In this situation I am, however, constrained to provide the opinion you seek so that the orderly election process is not impeded.

1982 PA 212, as SB 72, was passed by both houses of the Legislature in June of 1982 and approved by the Governor on July 3, 1982. Enacting section 1 of 1982 PA 212 proposes to amend 1939 PA 3; MCLA 460.1 et seq; MSA 22.13(1) et seq, Secs. 6a and 6b, as they relate to the regulation and control of public utilities by the Public Service Commission. Enacting section 2 of 1982 PA 212 provides:

'Pursuant to section 34 of article 4 of the state constitution of 1963, this amendatory act shall not take effect unless submitted to the qualified electors of the state at the general election to be held November 2, 1982, in the same manner as provided by law for the submission of a special question to the electors of the state for a popular vote, and approved by a majority of the electors voting on the question. If approved by the electors in the manner prescribed in this section, this amendatory act shall take effect immediately upon the official declaration of the vote.'

A motion to give SB 72 immediate effect did not prevail in the House of Representatives. 1982 HJ No 76, p 1558.

The Legislature has the authority to order a referendum vote on a legislative measure not making an appropriation of money. Const 1963, art 4, Sec. 34 expressly provides:

'Any bill passed by the legislature and approved by the governor, except a bill appropriating money, may provide that it will not become law unless approved by a majority of the electors voting thereon.'

It is clear that Const 1963, art 4, Sec. 34 authorizes the Legislature to seek approval of the electors before 1982 PA 212, enacting section 1 becomes operative as the law of this state. However, it does not provide for the time, place, or manner of such referendum vote. Therefore, in an attempt to implement this constitutional provision, the Legislature has included enacting section 2 of 1982 PA 212 empowering election officials to submit the amendatory act to the electors on November 2, 1982 in the same manner as provided by law for the submission of special questions.

Thus, the question arises: Are Michigan election officials empowered by law to place the question of approval of 1982 PA 212, enacting section 1, before the electors on the November, 1982 general election ballot where the Legislature declined to give immediate effect to 1982 PA 212, enacting section 2?

The law is well settled that a valid election may not be called or held without an express grant of the power to do so by either the Constitution or enactment of the Legislature. People, ex rel Fuller v Palmer, 91 Mich 283; 51 NW2d 999 (1892); Sempliner v Fitzgerald, 300 Mich 537; 2 NW2d 494 (1942). It must follow that election officials may not order a question to be presented for approval of the electors unless authorized by law to do so.

A statute has no force as law until the time it takes effect, and not before. McGarock v Ducharme, 192 Mich 98; 158 NW 173 (1916); Price v Hopkins, 13 Mich 318 (1865); Rice v Ruddiman, 10 Mich 125 (1862).

In Stow v Common Council of the City of Grand Rapids, 79 Mich 595, 596; 44 NW 1047 (1890), the Legislature enacted a bill to provide for two additional wards in the City of Grand Rapids. Only one house of the Legislature gave the bill immediate effect, although the 'engrossing clerk' inadvertently affixed that the bill was given immediate effect by both houses. The court held the enactment of the bill to be valid, but failure of both houses to order immediate effect served 'to postpone the time of the taking of effect of this act until 90 days after the close of the session.'

1982 PA 212, enacting section 2, has no force as law until it takes effect. McGarock v Ducharme, supra. It will not have the force of law until expiration of 90 days from the end of the 1982 legislative session when it will take effect and have the force of law. Const 1963, art 4, Sec. 27. In Weaver v Haney, 32 Mich App 424, 427; 188 NW2d 905 (1971), Judge Quinn stated:

'A statute passed to take effect at a future day is understood as speaking, from the time it goes into operation, and not from the time of its passage, Price v Hopkin (1865), 13 Mich 318.'

OAG, 1930-1932, p 138 (March 2, 1931), considered an identical question arising under Const 1908, art 5, Sec. 38, which, for the first time, empowered the Legislature to submit legislative enactments to the electors for their approval. This authority was invoked in 1931 when the Legislature had under consideration 1931 PA 2, which provided for capital punishment. The bill passed the Senate on February 18, 1 SJ 128 (1931), and was given immediate effect by the Senate on February 19, 1931, 1 SJ 40 (1931). The bill then passed the House of Representatives on February 26, 1931. 1 HJ 249 (1931). There, immediate effect was moved and the Speaker of the House ruled that the motion was out of order because the bill did not require immediate effect. 1 HJ 249-250 (1931). On March 2, 1931, the Speaker laid before the House the opinion of Attorney General Paul W. Voorhies, which concluded that the proposed legislation could not be legally placed before the voters at the election to be held on April 6, 1931 unless the bill was given immediate effect.

OAG, 1930-1932, p 138, supra, advised that any bill passed by the Legislature and approved by the Governor (except appropriations bills) may be referred to the qualified voters and such bill would not become law unless approved by a majority of the electors. It also concluded the Const 1908, art 5, Secs. 1, and 21, required that an act not be given effect until the expiration of 90 days from the end of the legislative session unless given immediate effect by a two-thirds vote of the members elected to each house.

Although the bill provided that it be submitted to the voters at the 'next April election.' Attorney General Voorhies ruled that the 'next April election' would not be April 6, 1931 unless the bill were given immediate effect.

'[T]he mere passage of the bill by the Legislature and the executive approval of the Governor will not give this bill, or any part of it, any effect whatever before April 6th, 1931, unless the bill or some part of it is given immediate effect by the Legislature. Unless this is done the bill or act does not in any sense become a part of the law of this state under the Constitution until at the end of ninety days after the final adjournment of the Legislature.

'I am of the opinion that the language used in Section 19, providing for a referendum 'at the next April election to be held in this State' means 'at the next April election after this Section has a legal effect under the Constitution'. Unless given immediate effect, it will not be in force prior to the election April 6th, 1931, and until it shall 'take effect or be in force' under Sections 1 and 21 of Article V, there is nothing in the law of this State authorizing the Secretary of State to submit the referendum to a vote. Under such circumstances, it would be necessary to advise the Secretary of State that the referendum would not be held until the first April election held after the bill was in effect, namely, after ninety days from the final adjournment of the Legislature.' (Emphasis added.) OAG, 1930-1932, supra, pp 138-139.

Thereafter, a motion was again made to give the bill immediate effect. This motion prevailed. 1 HJ 257 (1931). The bill, having been given immediate effect, was placed on the ballot on April 6, 1931.

Following the advice of Attorney General Voorhies, the Legislature has, prior to enactment of 1982 PA 212, submitted 10 legislative enactments to the electors for a referendum vote. (fn1) On each occasion, the Act was either given immediate effect so as to assure placement on the ballot at an early election or the Act did not require placement on the ballot at an election to be held during the same calendar year as the legislative session in which it was enacted. The only exception during this fifty year period is 1982 PA 212.

The Legislature's authority to seek electoral approval under the terms of Const 1908, art 5, Sec. 38, is substantially the same as that in Const 1963, art 4, Sec. 34. Moreover, the requirements of Const 1908, art 5, Secs. 1 and 21, that no bill shall be given effect until 90 days after a legislative session unless given immediate effect by two-thirds vote of members elected to each house, has been carried over in substance into Const 1963, art 4, Sec. 27. Thus, the logic and conclusion of Attorney General Voorhies' 1931 opinion continues to have validity today.

1982 PA 212, enacting section 2, takes effect 90 days after the end of the 1982 legislative session. It is not now part of the law of this state which could confer authority upon Michigan election officials to place the referendum proposal in question on the 1982 November general election ballot. There is no law in this state which would authorize you, as Secretary of State, to give notice to the county clerks of any question relating to approval by the electors of 1982 PA 212, enacting section 1, on the November, 1982 general election ballot.

Therefore, in view of the fact that the Legislature declined to give immediate effect to enacting section 2 of 1982 PA 212, its provisions will not have the force of law until 90 days after the final adjournment of the 1982 Legislature and Michigan's election officials have no authority to certify the placement of any question of the approval of 1982 PA 212, enacting section 1, on the ballot for the November, 1982 general election.

Frank J. Kelley

Attorney General

1. The Legislature ordered three of the eleven legislative referenda on the ballot pursuant to the provisions of Const 1908.

1931 PA 2, the subject matter of OAG, 1930-1932, p 138, supra, was enacted by the Legislature subject to approval by the electors at the April, 1931 general election as required by 1931 PA 2, Sec. 19. Only 1931 PA 2, Sec. 19 was given immediate effect by the Legislature. The Act was approved on March 11, 1931 by the Governor and rejected by the voters on April 6, 1931. In 1934 the Legislature ordered a referendum on 1934 Ex Sess PA 40, an Act to establish a state public works program and to contract debt in excess of $37,000,000 for that purpose. This Act, which was also given immediate effect, was approved by the Governor on March 28, 1934 for a special election to be held on April 30, 1934 as required by 1934 PA 40, Sec. 9.

The only legislative referendum ordered pursuant to Const 1908 which was not given immediate effect was 1939 PA 147, a Local Act to incorporate the Huron-Clinton Metropolitan Authority. In 1939 PA 147, Sec. 10, the Legislature provided for a referendum by the local residents to be held at the regular election in November, 1940. The Act was approved on May 26, 1939, but immediate effect was not ordered. The Legislature finally adjourned on June 30, 1939. However, the referendum was not held until November, 1940, well after 1939 PA 147 became effective subject to approval of the electors.

Following the adoption of Const 1963, eight legislative referenda have been ordered. Seven of those eight have been passed by the Legislature and signed by the Governor during election years. In order for them to be placed before the electorate at the general election occurring the same year, each act required immediate effect. In each of the seven instances, the Legislature gave the respective act immediate effect, ensuring that the measures appeared on the ballot that same year.

In 1968 the Legislature ordered two referenda on Acts authorizing the incurring of debt and issuance of bonds for public improvements subject to referendum by the electors. 1968 PA 76 and 1968 PA 257 were both given immediate effect, approved June 4, 1968 and July 1, 1968, respectively, and submitted to the voters on November 5, 1968 as required by 1968 PA 76, Sec. 8 and 1968 PA 257, Sec. 9, respectively.

Similarly, 1972 PA 231, an Act to borrow $266,000,000 and issue bonds for purposes of a Korean veterans' bonus subject to approval of the electors at the November 7, 1972 general election as required by 1972 PA 231, Secs. 6 and 11, was given immediate effect, was approved on July 27, 1972 and placed on the November 7, 1972 ballot.

Two Acts were passed in 1974 ordering referenda. These Acts purported to borrow money and issue bonds for the payment of a bonus to certain veterans and to make highway improvements. 1974 PA 106 and 1974 PA 245 were given immediate effect, approved by the Governor on May 21, 1974 and August 1, 1974, respectively, and submitted to the people on November 5, 1974 as ordered by 1974 PA 106, Sec. 5 and 1974 PA 245, Sec. 7.

More recently, 1980 PA 250, an Act to amend certain income tax law provisions subject to approval of the electors at the November 4, 1980 general election, was ordered to take immediate effect and approved by the Governor on July 28, 1980. Again, because it was ordered effective immediately, it was placed on the ballot during that same session, on November 4, 1980.

The only legislatively directed referendum on an Act not given immediate effect occurring since Const 1963 was 1969 PA 304. The bill, which authorized the borrowing of money and issuance of bonds for urban development subject to approval by the electors, was approved by the Governor on August 12, 1969. 1969 PA 304, Sec. 8 set the general election in November, 1970 as the date upon which the election should be held. The bill was not given immediate effect. On March 20, 1970, after the expiration of the waiting period of 90 days from the end of the session at which it was passed, 1968 PA 304 took effect and was placed on the ballot at the general election in November, 1970.