PROTECT MI CONSTITUTION V SECRETARY OF STATE (Authored Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PROTECT MI CONSTITUTION,
FOR PUBLICATION
August 14, 2012
9:00 a.m.
Plaintiff,
v
No. 311504
SECRETARY OF STATE,
Defendant,
Advance Sheets Version
and
CITIZENS FOR MORE MICHIGAN JOBS,
Intervening Defendant.
Before: OWENS, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ.
O’CONNELL, J.
In this original action, plaintiff, Protect MI Constitution (PMC), seeks a writ of
mandamus against defendant Secretary of State (the Secretary). PMC asks this Court to direct
the Secretary to reject a ballot question petition for a constitutional amendment filed by
intervening defendant Citizens for More Michigan Jobs (CFMMJ). We grant the requested
relief.
I. INTRODUCTION
CFMMJ is a ballot question committee that collected more than 500,000 petition
signatures for a constitutional amendment proposal to be placed on the November 2012 general
election ballot. The CFMMJ proposal would amend art 4, § 41 of the Michigan Constitution and
expand casino gaming throughout the state. The proposal would allow a fourth casino in Detroit
and seven other casinos at specific locations. Additionally, the CFMMJ proposal addresses
subjects related to casino gaming that are presently governed by the Michigan Gaming Control
and Revenue Act (the Gaming Act), MCL 432.201 et seq., which was enacted by voter initiative
in 1996. In some respects, the CFMMJ proposal directly contradicts provisions of the Gaming
Act, and CFMMJ admits that its proposal would limit, suspend, or invalidate portions of the
Gaming Act.
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PMC is a ballot question committee, representing existing casinos, that was formed to
oppose the CFMMJ proposal and challenge its eligibility for the ballot. PMC claims that the
proposal would amend the Gaming Act without following the constitutional procedures in Const
1963, art 2, § 9 for amending a voter-initiated law, or the constitutional procedures in Const
1963, art 4, §§ 24 and 25, requiring a title and republication of the statute to alter, revise, or
amend an existing law. PMC also asserts that the CFMMJ petition impermissibly advances more
than one purpose, and that its purpose is incapable of expression in 100 or fewer words.
PMC seeks a writ of mandamus from this Court directing the Secretary to stop the
canvass and to refrain from taking any action to place the CFMMJ proposal on the ballot. The
Attorney General has filed an amicus brief supporting PMC’s position. 1
This case presents an issue of first impression. We are asked to examine the process that
the constitution requires for placing before the voters a proposed constitutional amendment that
would alter specific provisions of a voter-initiated law. Our constitution sets forth separate and
distinct procedures for amending the constitution, amending a voter-initiated law, and revising or
altering a law. Michigan case law has not addressed whether the constitutional requirements for
altering or amending a voter-initiated law must be satisfied when a petition for a constitutional
amendment proposes a change in that law. We hold that Const 1963, art 4, § 25, which provides
that a law may not be altered, revised, or amended without a republishing of the affected
statutory language, applies to the CFMMJ petition presently before us. We further hold that the
CFMMJ petition fails to comply with the prerequisites of article 4, § 25. Accordingly, the
Secretary has a clear legal duty to reject the petition.
II. BACKGROUND AND PROCEDURAL HISTORY
A. THE GAMING ACT AND CONST 1963, ART 4, § 41
In the November 1996 general election, Michigan voters approved ballot initiative
“Proposal E,” which allowed the establishment of three casinos in Detroit. Proposal E created
the Michigan Gaming Control Board to regulate casino operations and imposed an 18% state
wagering tax on gaming revenues. Of this tax revenue, 55% was allocated to Detroit for public
safety and economic development, and 45% was allocated to the state for public education. The
law became effective December 5, 1996. 2 The Legislature codified Proposal E in the Gaming
Act and subsequently amended the law in 1997 by a three-fourths vote of both houses of the state
legislature, as provided by Const 1963, art 2, § 9 to amend a voter-initiated law. 3
1
We granted the motion of the Attorney General to file an amicus curiae brief. Protect MI
Constitution v Secretary of State, unpublished order of the Court of Appeals, entered August 3,
2012 (Docket No. 311504).
2
Const 1963, art 2, § 9 provides that an initiated law becomes effective ten days after the official
declaration of the vote.
3
1997 PA 69 defined the term “city” as a
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In 2004, Michigan voters adopted a constitutional amendment to restrict the expansion of
legalized gaming by requiring voter approval for certain expansions. Article 4, § 41 of the
Constitution presently provides:
The legislature may authorize lotteries and permit the sale of lottery
tickets in the manner provided by law. No law enacted after January 1, 2004, that
authorizes any form of gambling shall be effective, nor after January 1, 2004,
shall any new state lottery games utilizing table games or player operated
mechanical or electronic devices be established, without the approval of a
majority of electors voting in a statewide general election and a majority of
electors voting in the township or city where gambling will take place. This
section shall not apply to gambling in up to three casinos in the City of Detroit or
to Indian tribal gaming. [Const 1963, art 4, § 41.]
B. THE CFMMJ BALLOT PROPOSAL
The CFMMJ proposal would amend Const 1963, art 4, § 41. The proposed constitutional
amendment would strike all of the existing language of § 41 except the first sentence, “The
Legislature may authorize lotteries and permit the sale of lottery tickets in any manner provided
by law.” The CFMMJ proposal 4 would add language to § 41 to allow casino gaming in eight
locations in the state, providing in part:
The Legislature may authorize lotteries and permit the sale of lottery tickets in
any manner provided by law. In addition, for the purpose of Michigan
employment opportunities and economic development, as well as funding for
K-12 schools, police and fire services, and road construction and repair, casino
gaming shall be permitted in the following locations throughout the State of
Michigan:
In the City of Detroit, in addition to the three existing Casinos in that city, on
[certain designated properties].
local unit of government other than a county which meets all of the following
criteria:
(i) has a population of at least 800,000 at the time a license is issued.
(ii) is located within 100 miles of any other state or country in which
gaming was permitted on December 5, 1996.
(iii) had a majority of voters who expressed approval of casino gaming in
the city. [MCL 432.202(l).]
4
The CFMMJ proposal is written in all capital letters in the petition. However, for ease of
reading it is reproduced in this opinion in lower case letters.
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The proposed amendment provides the legal descriptions of parcels for the potential location of a
new Detroit casino. It also authorizes seven new casinos outside Detroit and provides the legal
descriptions of sites in Clam Lake Township in Wexford County, DeWitt Township in Clinton
County, Pontiac in Oakland County, Clinton Township in Macomb County, Birch Run Township
in Saginaw County, Grand Rapids in Kent County, and Romulus in Wayne County.
The Gaming Act allows only three casinos in Detroit. MCL 432.206(3). In addition to
authorizing new casinos, the CFMMJ proposal contains several provisions that are different
from, and in some places directly contrary to, various provisions in the Gaming Act. For
example:
(1) The Gaming Act defines “casino” as “a building in which gaming is conducted.” It
defines “gaming” as “to deal, operate, carry on, conduct, maintain or expose or offer for play any
gambling game or gambling operation.” MCL 432.202(g) and (x).
The CFMMJ proposal uses the term “casino gaming,” which it defines as “gambling in
each and all forms now and hereafter authorized within the state of Michigan and by federal law.
The term ‘casino’ means the facility in which actual gaming activities are conducted.”
(2) The Gaming Act imposes an 18% wagering tax on the adjusted gross receipts from
casinos. MCL 432.212(1).
The CFMMJ proposal would impose a 23% wagering tax on the casinos’ adjusted gross
receipts.
(3) The Gaming Act allows a city to impose a municipal services fee on the casino
operator (licensee) that is “equal to the greater of 1.25% of adjusted gross receipts or
$4,000,000.00 in order to assist the city in defraying the cost of hosting casinos.” MCL
432.213(1).
The CFMMJ proposal would eliminate the ability of cities to impose municipal services
fees and other assessments related to gaming. The language of the proposed amendment to
Const 1963, art 4, § 41 includes:
No other taxes, fees, assessments or costs of any kind related directly to
gaming or wagering shall be imposed upon a casino subject to the wagering tax
described in this section, except for reasonable regulatory fees imposed by the
State of Michigan for a license to operate the casino or for fines and penalties
assessed by the State of Michigan for conduct prohibited by Michigan law.
(4) The Gaming Act allocates 55% of the wagering tax revenues to specified uses within
the city where a casino is located and 45% of the wagering tax revenues to fund state public
education. MCL 432.212(3).
The CFMMJ proposal would reallocate the wagering tax revenues. The taxes from
Detroit casinos would be allocated as follows: 60% of the wagering tax revenues would fund
police and fire services in Detroit, 20% would fund K-12 schools throughout the state, and 20%
would fund road repairs and construction throughout the state. For wagering tax revenues
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generated by casinos outside Detroit, 30% of the revenues would be distributed to the state to
fund K-12 public schools, 20% of the revenues would be distributed directly to all municipalities
throughout the state to fund police and fire services, 20% would be distributed directly to the
municipality where the casino is located, 20% to the county where the casino is located, 5% to
the state to fund road repair and construction, and 5% to the state to fund gambling-addiction
programs.
(5) The Gaming Act requires casinos to pay for all the state’s “regulatory and
enforcement costs, compulsive gambling programs, casino-related programs and activities,
casino-related legal services provided by the attorney general, and the casino-related expenses of
the department of state police.” MCL 432.212a(1).
As stated, the CFMMJ proposal would prohibit other taxes, fees, assessments or costs of
any kind related directly to gaming or wagering from being imposed on a casino, “except for
reasonable regulatory fees imposed by the State of Michigan for a license to operate the casino”
and fines or penalties for wrongful conduct.
(6) The Gaming Act governs the application procedure for casino licenses. It requires
certain disclosures, criminal background and financial information, and other information that
must be provided to (and reviewed and investigated by) the Gaming Control Board. MCL
432.205; MCL 432.206.
The CFMMJ would authorize the Gaming Control Board to establish rules for casino
licensing. The proposed amendment does not require disclosure of investors or background
checks of employees.
(7) The Gaming Act provides that “[a]lcoholic beverages shall only be sold or distributed
in a casino pursuant to the Michigan liquor control act.” MCL 432.210.
The CFMMJ proposal entitles all casinos to liquor licenses: “All of the casinos
authorized by this section shall be granted liquor licenses issued by the State of Michigan to
serve alcoholic beverages on the premises.”
(8) As a condition for eligibility to apply for a casino license, the Gaming Act requires
an applicant to have “entered into a certified development agreement with the city where the
local legislative body enacted an ordinance approving casino gaming.” MCL 432.206(1)(b).
Applicants must submit the required development agreements and documents with their
applications. MCL 432.205(3).
The CFMMJ proposal does not require development agreements. To the extent that such
agreements would impose fees or assessments by the city related to gaming, they would be
prohibited.
C. PMC’S REQUEST TO THE SECRETARY TO REJECT THE CFMMJ PETITION
CFMMJ submitted its petition on June 26, 2012, to the Secretary for placement on the
November ballot. In a July 17, 2012, letter to the Secretary, counsel for PMC urged the
Secretary to determine that the CFMMJ proposal is ineligible for the ballot. PMC advanced
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three reasons in support of its position: (1) a single ballot proposal may not be used to amend
both the constitution and an initiated law; (2) a ballot proposal that would amend an initiated law
must comply with Const 1963, art 2, § 9; and (3) because the CFMMJ ballot proposal would
amend the Gaming Act, the petition must have a title stating that objective and inform voters of
the proposal’s effect on the initiated law by republishing the Gaming Act, in accordance with
Const 1963, art 4, § 24 and 25.
The Director of Elections responded that no clear legal duty exists on the part of the
Secretary “to decide whether a ballot question is constitutional.” The Secretary notified the
Board of State Canvassers of the filing of the CFMMJ petition, and the Board began its canvass
of the petition to determine the validity and sufficiency of the petition signatures pursuant to
Const 1963, art 12, § 2. 5
III. THE COMPLAINT FOR MANDAMUS
PMC asks this Court to direct the Secretary to reject the petition. PMC claims that
although the CFMMJ petition purports only to amend art 4, § 41 of the state constitution, the
proposal also amends several provisions of the voter-initiated Gaming Act without complying
with the constitutional procedures in art 2, § 9 for doing so. Additionally, the petition is silent
about the proposed constitutional amendment’s effects on the Gaming Act. PMC contends that
the proposal is ineligible for the ballot because the CFMMJ petition does not comply with the
title and notice requirements of Const 1963, art 4, §§ 24 and 25 for altering, revising, or
amending a law. PMC characterizes the CFMMJ proposal as an attempt to surreptitiously amend
the Gaming Act by constitutional amendment, thereby circumventing the constitutional
requirements for altering or amending a statute.
The Secretary answers that she has no legal duty to review the CFMMJ petition to
determine whether it meets the constitutional prerequisites for acceptance and placement on the
ballot. The Secretary maintains that determining the procedural constitutionality of the CFMMJ
petition is a discretionary task that is outside the scope of her statutory responsibilities and
authority. She also states that any such duty, if it exists, would not be ministerial in nature and
therefore would not be a proper subject for mandamus relief. 6
5
MCL 168.477(1) requires the Board to certify the petition as sufficient or insufficient at least
two months before the general election, which in this case is September 7, 2012. When PMC
filed its complaint for mandamus, the CFMMJ petition was before the Board of State
Canvassers, and the Board’s decision regarding the sufficiency of the petition was pending.
6
The Secretary takes no position regarding the merits of PMC’s allegations regarding the
constitutional validity of the CFMMJ proposal, but she recognizes her ministerial duty to act in
accordance with this Court’s determination whether the proposal meets the constitutional
prerequisites for acceptance.
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CFMMJ intervened. 7 CFMMJ challenges PMC’s standing to bring this mandamus action
and the ripeness of this case for decision. With respect to the merits of the complaint, CFMMJ
argues that its proposal seeks only to amend the constitution, and that CFMMJ has complied with
the requirements of Const 1963, art 12, § 2 for doing so. CFMMJ concedes that the proposed
constitutional amendment will limit or suspend some provisions of the Gaming Act and will
impact the application and the enforcement of the Gaming Act. But CFMMJ maintains that the
proposed constitutional amendment will not amend the Gaming Act in any way because the
language of the Gaming Act will remain unchanged. CFMMJ argues that the procedural
requirements for amending a statute are inapplicable because its proposal seeks to amend the
constitution.
The Attorney General urges this Court to grant mandamus relief and to order the
Secretary to refrain from placing the CFMMJ proposal on the ballot. The Attorney General
maintains that a single ballot proposal cannot be used to amend both a voter-initiated law and the
constitution. The Attorney General argues that CFMMJ’s compliance only with Const 1963, art
12, § 2 regarding publication of the constitutional provision that would be changed by the
proposed constitutional amendment leaves voters uninformed about the effect that the proposal
would have on the voter-initiated Gaming Act. The Attorney General argues that alteration or
revision of the Gaming Act, which the CFMMJ proposal would affect, requires a title and
publication of the affected provisions under Const 1963, art 4, §§ 24 and 25.
IV. DISCUSSION AND ANALYSIS
A. JURISDICTION
This Court has jurisdiction over an original action for mandamus against a state officer.
MCR 7.203(C)(2); MCL 600.4401(1). The Secretary is a state officer for purposes of
mandamus. Citizens Protecting Michigan’s Constitution v Secretary of State, 280 Mich App
273, 282; 761 NW2d 210, aff’d in part 482 Mich 960 (2008). “Mandamus is the appropriate
remedy for a party seeking to compel action by election officials.” Id. at 283.
B. STANDARD FOR MANDAMUS
A writ of mandamus is an extraordinary remedy. Coalition for a Safer Detroit v Detroit
City Clerk, 295 Mich App 362, 366; 820 NW2d 208 (2012). The plaintiff must show that (1) the
plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the
defendant has a clear legal duty to perform the requested act, (3) the act is ministerial, and (4) no
other remedy exists that might achieve the same result. Id. at 366-367. See also White-Bey v
Dep’t of Corrections, 239 Mich App 221, 223-224; 608 NW2d 833 (1999). An act is ministerial
if it is “prescribed and defined by law with such precision and certainty as to leave nothing to the
exercise of discretion or judgment.” Citizens Protecting Michigan’s Constitution, 280 Mich App
7
We granted CFMMJ’s motion to intervene. Protect MI Constitution v Secretary of State,
unpublished order of the Court of Appeals, entered August 2, 2012 (Docket No. 311504).
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at 286, quoting Carter v Ann Arbor City Attorney, 271 Mich App 425, 439; 722 NW2d 243
(2006) (quotation marks omitted).
C. STANDING
We reject CFMMJ’s challenge to PMC’s standing to bring this action. Michigan
jurisprudence recognizes the special nature of election cases and the standing of ordinary citizens
to enforce the law in election cases. Deleeuw v Bd of State Canvassers, 263 Mich App 497, 505506; 688 NW2d 847 (2004). See also Helmkamp v Livonia City Council, 160 Mich App 442,
445; 408 NW2d 470 (1987) (“[I]n the absence of a statute to the contrary, . . . a private
person . . . may enforce by mandamus a public right or duty relating to elections without showing
a special interest distinct from the interest of the public.” [Quotation marks omitted.]). The
general interest of ordinary citizens to enforce the law in election cases is sufficient to confer
standing to seek mandamus relief. See Citizens Protecting Michigan’s Constitution, 280 Mich
App at 282 (permitting a ballot question committee to challenge a petition).
D. RIPENESS AND THE NEED FOR A THRESHOLD DETERMINATION
Our Supreme Court has recognized that a ballot issue controversy is ripe for review when
“it is not dependent upon the Board of Canvassers’ counting or consideration of the petitions but
rather involves a threshold determination whether the petitions on their face meet the
constitutional prerequisites for acceptance.” Michigan United Conservation Clubs v Secretary of
State, 463 Mich 1009; 625 NW2d 377 (2001). See also Citizens Protecting Michigan’s
Constitution, 280 Mich App at 282-283 (rejecting a ripeness challenge that was premised on the
fact that the Board had not decided whether to certify an initiative petition). PMC’s complaint
for mandamus requires us to make a “threshold determination” whether the CFMMJ proposal
qualifies for placement on the ballot according to constitutional prerequisites. In that context and
on that issue, this case is ripe for adjudication.
We emphasize that the constitutional issue before us is limited to the procedure employed
by CFMMJ to alter the Gaming Act by means of a constitutional amendment and the CFMMJ
proposal’s eligibility for the ballot. We do not consider the constitutionality of the proposed
amendment itself, which would be premature before the voters adopt the proposal. See
Leininger v Secretary of State, 316 Mich 644, 651; 26 NW2d 348 (1947) (noting that substance
of initiative petition was not being questioned in writ of mandamus); Hamilton v Secretary of
State, 212 Mich 31, 34; 179 NW 553 (1920) (holding that issue of constitutionality of initiative
petition was not ripe for review). In Citizens Protecting Michigan’s Constitution, we adopted
Justice OSTRANDER’s articulation of this important distinction, first expressed in 1918 in Scott v
Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918), and reaffirmed in Leininger:
In . . . Leininger the Court carved out an exception to the Hamilton rule,
holding that a constitutionally fatal defect in an initiative petition supported the
issuance of a writ of mandamus prohibiting the Secretary of State from
transmitting the proposed law. The Leininger Court explained that, unlike in
Hamilton, “[i]n the case at bar . . . we are not concerned with the question of
whether the substance of the proposed law is violative of the Federal or State
Constitutions. Here the question is whether the petition, in form, meets the
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constitutional requirement so as to qualify it for transmittal to the legislature and
submission to the people.” [Leininger, 316 Mich] at 651. On this point, the
words of Chief Justice OSTRANDER in Scott v Secretary of State, 202 Mich 629,
643; 168 NW 709 (1918), are most instructive:
“Of the right of qualified voters of the State to propose amendments to the
Constitution by petition it may be said, generally, that it can be interfered with
neither by the legislature, the courts, nor the officers charged with any duty in the
premises. But the right is to be exercised in a certain way and according to
certain conditions, the limitations upon its exercise, like the reservation of the
right itself, being found in the Constitution. [Emphasis added.]” [Citizens
Protecting Michigan’s Constitution, 280 Mich App at 289.][8]
The same principle applies here, making PMC’s request for mandamus a proper subject for this
Court’s consideration.
Because the challenges in this case implicate this “threshold
determination” whether the petition meets the constitutional prerequisites for acceptance, this
case is ripe for this Court’s consideration. Id. at 283.
E. MINISTERIAL DUTY OR DISCRETIONARY JUDGMENT
This Court clarified the nature of the Secretary’s legal duty in this context in Citizens
Protecting Michigan’s Constitution. In that original action seeking mandamus relief to keep an
initiative from the general election ballot, this Court explained that it was for this Court to
examine the constitutional amendment initiative and determine its eligibility for the ballot in
light of constitutional prerequisites for acceptance. Once that threshold determination was made,
the Secretary’s task of rejecting the petition was ministerial.
In Citizens Protecting Michigan’s Constitution, the plaintiffs sought a writ of mandamus
directing the Secretary and the Board of State Canvassers to reject an initiative petition filed by
the intervening defendant Reform Michigan Government Now! (RMGN). The petition proposed
a single constitutional amendment for the November 2008 general election ballot that would
comprehensively restructure state government. Id. at 275. 9 The plaintiffs argued that the
8
Scott and Leininger interpreted previous versions of our constitution.
9
The proposed constitutional amendment in Citizens Protecting Michigan’s Constitution
included provisions to: modify initiative and referendum procedures, establish a new office of
elections in the executive branch, freely allow absentee ballot voting, reduce the number of
legislators in the state house and senate, reduce the number of appellate judgeships and Court of
Appeals districts while adding circuit court judgeships, change procedures for legislative
districting, reduce salaries and alter pension benefits of certain elected officials, impose limits on
lobbying activities, change election procedures for selecting the governor and the lieutenant
governor, make changes to the governor’s and the Legislature’s authority in certain matters, and
replace the Judicial Tenure Commission with a new body composed of nonlawyers. Id. at 279281.
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RMGN proposal was ineligible for the ballot because its provisions amounted to a general
revision of the constitution that could only be accomplished by a constitutional convention and
because the proposal served more than a single purpose. Id. at 281-282. This Court recognized a
clear legal duty of the Secretary that a writ of mandamus can enforce once the Court makes its
threshold determination of constitutional compliance:
[A]ssuming the Board and the Secretary have no clear legal duty to
determine whether the RMGN initiative petition is an “amendment” to, or a
“general revision” of, the constitution, or a duty to determine whether the RMGN
initiative petition serves more than one purpose, then this Court must make the
“threshold determination” that the RMGN initiative petition does not meet the
constitutional prerequisites for acceptance. And, at that point, the Board and the
Secretary have a clear legal duty to reject the RMGN petition. In other words, in
this case, our order would not enforce any duty on the part of the Board and the
Secretary to make the “threshold determination” whether the RMGN initiative
petition is an “amendment” or a “general revision,” or whether it serves more
than one purpose. Rather, our order would enforce a duty on the part of the
Board and the Secretary to reject the RMGN initiative petition in light of our
“threshold determination” that it does not meet the constitutional prerequisites
for acceptance. [Id. at 291 (some emphasis added).]
This Court concluded that the subsequent act of the Secretary in rejecting the challenged
initiative petition after the Court made its threshold determination “would be ministerial in
nature because it would not require the exercise of judgment or discretion.” Id. at 291-292.
Likewise, this Court must determine whether the CFMMJ petition satisfies the constitutional
requirements for placement on the general election ballot. The Secretary will then have the
ministerial task of rejecting the petition, or not, in accordance with this Court’s decision.
F. RELEVANT CONSTITUTIONAL PROVISIONS
Among the rights that the Michigan Constitution reserves to the people of this state are
the right to amend their constitution, to enact laws by initiative, and to amend initiated laws. The
constitution prescribes different procedures for exercising these rights.
Const 1963, art 12, § 2 allows voters to amend the constitution by voter initiative as
follows:
Amendments may be proposed to this constitution by petition of the
registered electors of this state. Every petition shall include the full text of the
proposed amendment, and be signed by registered electors of the state equal in
number to at least 10 percent of the total vote cast for all candidates for governor
at the last preceding general election at which a governor was elected. Such
petitions shall be filed with the person authorized by law to receive the same at
least 120 days before the election at which the proposed amendment is to be voted
upon. Any such petition shall be in the form, and shall be signed and circulated in
such manner, as prescribed by law. The person authorized by law to receive such
petition shall upon its receipt determine, as provided by law, the validity and
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sufficiency of the signatures on the petition, and make an official announcement
thereof at least 60 days prior to the election at which the proposed amendment is
to be voted upon.
Any amendment proposed by such petition shall be submitted, not less
than 120 days after it was filed, to the electors at the next general election. Such
proposed amendment, existing provisions of the constitution which would be
altered or abrogated thereby, and the question as it shall appear on the ballot shall
be published in full as provided by law. Copies of such publication shall be
posted in each polling place and furnished to news media as provided by law.
The ballot to be used in such election shall contain a statement of the
purpose of the proposed amendment, expressed in not more than 100 words,
exclusive of caption. Such statement of purpose and caption shall be prepared by
the person authorized by law, and shall consist of a true and impartial statement of
the purpose of the amendment in such language as shall create no prejudice for or
against the proposed amendment.
If the proposed amendment is approved by a majority of the electors
voting on the question, 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. If two or more amendments
approved by the electors at the same election conflict, that amendment receiving
the highest affirmative vote shall prevail.
Const 1963, art 2, § 9 protects the people’s right to enact laws through initiative and
prescribes the means for amending or repealing a voter-initiated law. Amendment or repeal of
an initiated law can only be accomplished “by a vote of the electors unless otherwise provided in
the initiative measure or by three-fourths of the members elected to and serving in each house of
the legislature.” Id. Article 2, § 9 provides in full:
The people reserve to themselves the power to propose laws and to enact
and reject laws, called the initiative, and the power to approve or reject laws
enacted by the legislature, called the referendum. The power of initiative extends
only to laws which the legislature may enact under this constitution. The power
of referendum does not extend to acts making appropriations for state institutions
or to meet deficiencies in state funds and must be invoked in the manner
prescribed by law within 90 days following the final adjournment of the
legislative session at which the law was enacted. To invoke the initiative or
referendum, petitions signed by a number of registered electors, not less than
eight percent for initiative and five percent for referendum of the total vote cast
for all candidates for governor at the last preceding general election at which a
governor was elected shall be required.
No law as to which the power of referendum properly has been invoked
shall be effective thereafter unless approved by a majority of the electors voting
thereon at the next general election.
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Any law proposed by initiative petition shall be either enacted or rejected
by the legislature without change or amendment within 40 session days from the
time such petition is receive by the legislature. If any law proposed by such
petition shall be enacted by the legislature it shall be subject to referendum, as
hereinafter provided.
If the law so proposed is not enacted by the legislature within the 40 days,
the state officer authorized by law shall submit such proposed law to the people
for approval or rejection at the next general election. The legislature may reject
any measure so proposed by initiative petition and propose a different measure
upon the same subject by a yea and nay vote upon separate roll calls, and in such
event both measures shall be submitted by such state officer to the electors for
approval or rejection at the next general election.
Any law submitted to the people by either initiative or referendum petition
and approved by a majority of the votes cast thereon at any election shall take
effect 10 days after the date of the official declaration of the vote. No law
initiated or adopted by the people shall be subject to the veto power of the
governor, and no law adopted by the people at the polls under the initiative
provisions of this section shall be amended or repealed, except by a vote of the
electors unless otherwise provided in the initiative measure or by three-fourths of
the members elected to and serving in each house of the legislature. Laws
approved by the people under the referendum provision of this section may be
amended by the legislature at any subsequent session thereof. If two or more
measures approved by the electors at the same election conflict, that receiving the
highest affirmative vote shall prevail.
The legislature shall implement the provisions of this section. [Emphasis
added.]
The Gaming Act does not provide other means for its amendment. Therefore, either a vote of the
electorate or a three-fourths vote in each house of the legislature is required to amend the
Gaming Act. Const 1963, art 2, § 9.
Clearly, Const 1963, art 2, § 9 and art 12, § 2 prescribe different procedures that must be
satisfied before an initiative is submitted to the electorate, depending on the type of initiative. A
legislative initiative requires petitions signed by 8% of registered electors; a constitutional
amendment requires petitions signed by 10% of registered electors. Unlike a constitutional
amendment proposal, a legislative initiative must be submitted to the legislature for adoption or
rejection. These constitutional provisions both authorize amendment by a vote of the electors,
but they set different procedures for accomplishing these different objectives.
Const 1963, art 4, § 24 mandates that a law can have only one object and must have a
title that expresses its object: “No law shall embrace more than one object, which shall be
expressed in its title.”
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The revision, alteration, or amendment of a law implicates the procedures of Const 1963,
art 4, § 25. The law as it exists must be published to show the effect of the proposed changes.
Const 1963, art 4, § 25 provides:
No law shall be revised, altered or amended by reference to its title only.
The section or sections of the act altered or amended shall be re-enacted and
published at length.
This publication requirement applies to the revision or the alteration of a law by the people
through the initiative process. See Auto Club of Mich Comm for Lower Rates Now v Secretary of
State (On Remand), 195 Mich App 613, 622-624; 491 NW2d 269 (1992) (finding that the failure
to republish at length certain statutory provisions in their proposed amended forms may not be
considered before the initiative is submitted to the electorate for a vote).
G. APPLICATION OF THE PREREQUISITES OF CONST 1963, ART 2, § 9
Const 1963, art 2, § 9 and Const 1963, art 12, § 2 prescribe separate procedures for
amending voter-initiated laws and for amending the constitution, respectively. They are not
interchangeable alternatives. These distinct procedures for different objectives must be
respected. Citizens Protecting Michigan’s Constitution, 280 Mich App at 295. Accordingly,
CFMMJ may not use a constitutional amendment under art 2, § 12 to effect an amendment of the
Gaming Act. If CFMMJ seeks to amend the Gaming Act, it must satisfy the dictates of art 2, § 9.
On its face, the CFMMJ petition purports only to amend Const 1963, art 4, § 41. As
required by article 12, § 2, the petition indicates the language that it proposes to strike from
article 4, § 41, as well as the language that the proposed amendment would add. The petition
contains no reference to the Gaming Act. Whether disclosure of the CFMMJ proposal’s effects
on the Gaming Act is required depends upon whether the CFMMJ proposal is properly deemed
an amendment of the Gaming Act.
We need not decide whether the CFMMJ proposal constitutes an amendment of the
Gaming Act, thereby requiring compliance with the procedures in Const 1963, art 2, § 9 for
submission to the voters. The republication requirement of Const 1963, art 4, § 25 applies not
only to efforts to amend an existing law, but also to proposals that would revise or alter a law.
Although similar, principles of construction require us to give meaning to each term, “revise,”
“alter,” and “amend,” lest any one of them be rendered surplusage or nugatory. Apsey v Mem
Hosp, 477 Mich 120, 127; 30 NW2d 695 (2007). To the extent that the CFMMJ proposal revises
or alters the Gaming Act, it must comply with Const 1963, art 4, § 25.
H. APPLICATION OF CONST 1963, ART 4, § 25
As set forth, Const 1963, art 4, § 25 provides that “[n]o law shall be revised, altered or
amended by reference to its title only. The section or sections of the act altered or amended shall
be re-enacted and published at length.” This notice requirement has a long history and its
significance is deeply rooted in this state’s constitutional jurisprudence. Const 1963, art 4, § 25
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was also article 4, § 25 of the 1850 Constitution,10 under which our Supreme Court decided Mok
v Detroit Bldg & Savings Ass’n No 4, 30 Mich 511 (1875). Alan v Wayne Co, 388 Mich 210,
273; 200 NW2d 628 (1972). Justice COOLEY wrote of article 4, § 25 in Mok:
No one questions the great importance and value of the provision, nor that
the evil it was meant to remedy was one perpetually recurring, and often serious.
Alterations made in the statutes by mere reference, and amendments by the
striking out or insertion of words, without reproducing the statute in its amended
form, were well calculated to deceive and mislead, not only the legislature as to
the effect of the law proposed, but also the people as to the law they were to obey,
and were perhaps sometimes presented in this obscure form from a doubt on the
part of those desiring or proposing them of their being accepted if the exact
change to be made were clearly understood. [Mok, 30 Mich at 515-516.]
In Advisory Opinion re Constitutionality of 1972 PA 294; 389 Mich 441; 208 NW2d 469
(1973), our Supreme Court reiterated the import of art 4, § 25 in Constitution 1963. The Court
interpreted art 4, § 25 in the context of addressing the constitutionality of an amendment to the
no-fault act. The Court recognized the significant purpose of § 25 to provide notice to the public
of the full effects of a proposed amendment:
The language of § 25 is quite clear.
It says succinctly and
straightforwardly that no law (meaning statutory enactment) shall be revised,
altered or amended by reference to its title only. The constitutional language then
proceeds to state how it shall be done (i.e. the section[s] of the act in question
shall be amended by reenacting and republishing at length).
There are only two sentences in § 25. Although the second word is “law”,
it is obvious from the reading of the entire section that “law” means act or section
of an act. Section 25 is worded to prevent the revising, altering or amending of an
act by merely referring to the title of the act and printing the amendatory language
then under consideration. If such a revision, alteration or amendment were
allowed, the public and the Legislature would not be given notice and would not
be able to observe readily the extent and effect of such revision, alteration or
amendment. [Id., 389 Mich at 470.]
Looking to precedent, the Advisory Opinion Court quoted Justice COOLEY in People v Mahaney,
13 Mich 481 (1865):
10
Article 4, § 25 of the Constitution of 1850 was worded and punctuated slightly differently than
in the current version: “No law shall be revised, altered or amended by reference to its title only;
but the act revised, and the section or sections of the act altered or amended shall be reenacted
and published at length.” “Except for some punctuation and some rearrangement of words in the
latter half of the provision, this language has continued through to this date (also see 1908 Cont
art 5, § 21, § 22).” Advisory Opinion re Constitutionality of 1972 PA 294; 389 Mich 441, 469470; 208 NW2d 469 (1973).
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“This constitutional provision must receive a reasonable construction, with
a view to give it effect. The mischief designed to be remedied was the enactment
of amendatory statutes in terms so blind that the legislators themselves were
sometimes deceived in regard to their effect, and the public, from the difficulty in
making the necessary examination and comparison, failed to become apprised of
the changes made in the laws.” (p 497.)
This citation indicates that another reason for the language in § 25 is to
require that notice be given to the Legislature and the public of what is being
changed and the content of the act as revised, altered or amended. . . .
* * *
“An amendatory act which purported only to insert certain words, or to
substitute one phrase for another in an act or section which was only referred to
but not republished, was well calculated to mislead the careless as to its effect,
and was, perhaps, sometimes drawn in that form for that express purpose.
Endless confusion was introduced into the law, and the constitution wisely
prohibited such legislation.” [Advisory Opinion, 389 Mich at 472-473, quoting
Mahaney, 13 Mich at 497.]
The effects of the proposed constitutional amendment on the Gaming Act are not minor.
If adopted, the CFMMJ proposal will significantly limit, suspend, or invalidate specific
provisions of the statute. Among other changes to the Gaming Act, the constitutional
amendment will authorize more casinos than the Gaming Act allows, increase the wagering tax
rate, change the statute’s allocation of tax revenues, remove the Gaming Act’s requirement that
casinos’ liquor licenses be issued according to the liquor control act and instead mandate such
licenses, and alter the duties of the Michigan Gaming Control Board. If Michigan voters are
presented with and adopt the CFMMJ proposal, the constitutional amendment will supersede
numerous provisions of the Gaming Act because the authority of a constitutional amendment is
superior to statutory authority. See Dunn v Dunn, 105 Mich App 793, 805; 307 NW2d 424
(1981) (noting that when statutes conflict with our constitution, the latter controls) (KALLMAN,
J., concurring). Although the CFMMJ proposal does not amend the Gaming Act by changing its
language, the proposal nonetheless thoroughly revises the Act.
If the CFMMJ proposal is allowed to be placed on the ballot, not only would it run afoul
of the republication requirement of Const 1963, art 4, § 25, but it would foster the harm that § 25
seeks to prevent. The constitutional amendment would substantially change the Gaming Act, yet
the public “would not be given notice and would not be able to observe readily the extent and
effect of such revision, alteration, or amendment.” Advisory Opinion, 389 Mich at 470.
The CFMMJ petition does not publish at length the sections of the Gaming Act that the
proposed constitutional amendment would alter as required by Const 1963, art 4, § 25. The
petition contains no reference to the Gaming Act. The petition heading states only that it
proposes a constitutional amendment; the petition discloses nothing about the substantial
changes to the application and enforcement of the Gaming Act that would result from adoption
of the proposal. Indeed, the petition gives no indication to voters that the CFMMJ proposal
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would alter parts of the voter-initiated Gaming Act in any way. Because the proposed
amendment would directly alter provisions of the Gaming Act without republishing the affected
provisions, the CFMMJ proposal fails to satisfy Const 1963, art 4, § 25. This failure makes it
ineligible for placement on the ballot. 11
We neither address nor consider the wisdom of the CFMMJ proposal. Whether the goals
of the CFMMJ proposal are desirable, or whether its changes to the Gaming Act are sound
policy, are not before us. We simply apply the procedural requirements that the constitution
demands.
Our decision today gives effect to the publication requirement of Const 1963, art 4, § 25
and furthers its purpose of ensuring that the public is informed of the effects of proposed changes
to existing law. By giving effect to article 4, § 25, the public will be assured of the opportunity
to “mak[e] the necessary examination and comparison” and “to become apprised of the changes
made in the laws.” Advisory Opinion, 389 Mich at 472-473. This constitutional safeguard is as
crucial to the people’s exercise of their right to amend their constitution, perhaps more so, as it is
to their use of the initiative to enact or amend existing law.
We grant the relief requested in the complaint for a writ of mandamus, and we have
concurrently issued an order directing the Secretary to reject the CFMMJ petition and to disallow
the proposal from the ballot.
No costs, a public question being involved. We do not retain jurisdiction. This opinion
is to have immediate effect, MCR 7.215(F)(2).
/s/ Peter D. O’Connell
/s/ Donald S. Owens
11
The Attorney General stated at oral argument that amending both the constitution and an
initiated law would require separate petitions. Whether two petitions would be necessary to
accomplish CFMMJ’s casino gaming expansion goals, or whether one petition would suffice if
that petition republished both the Gaming Act provisions and constitutional provisions that the
CFMMJ proposal would affect, is not before us. Accordingly, we leave that question for another
day.
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