LEROUX ET AL V SECRETARY OF STATE
Annotate this Case
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Opinion
Maura D. Cor rigan
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MARCH 25, 2002
DAVID LeROUX, MICHAEL GRAY,
and ROBERT L. ELLIS,
Plaintiffs,
v
No. 120338
SECRETARY OF STATE and
DIRECTOR OF ELECTIONS,
Defendants,
and
SUZANNE L. ANDERSON, SHARON
YENTSCH, and BRADLEY
VAN HAITSMA,
Intervening Defendants.
________________________________
PER CURIAM
In this original action, plaintiffs challenge the plan
for
redistricting
Michigan’s
fifteen
seats
in
the
United States House of Representatives adopted by 2001 PA 115.
Plaintiffs claim that the statute was not validly enacted
because the bill passed by the Legislature was changed by the
Secretary of the Senate before presentation to the Governor
for his approval. Second, they contend that the plan fails to
comply with Michigan statutory requirements for congressional
redistricting established by 1999 PA 221.
We conclude:
(1) 2001 PA 115 was validly enacted because the changes made
before submission to the Governor were technical corrections
that
do
not
Constitution
violate
regarding
the
provisions
enactment
of
of
the
legislation;
Michigan
(2)
the
redistricting guidelines of MCL 3.63(c), as enacted by 1999 PA
211, were not binding on the Legislature’s redistricting of
Michigan’s congressional seats in 2001; and (3) the reference
to the 1999 guidelines in the 2001 redistricting act does not
indicate
an
intention
by
the
Legislature
to
make
the
redistricting plan reviewable using those guidelines.
We
therefore deny the application for review of the congressional
redistricting plan.
I.
Federal Framework for Congressional Districting
The
Constitution
provides
that
representatives
in
Congress are to be apportioned among the states according to
their populations,1 with the allocation to be made according
to the decennial census.2
In general, the United States
Constitution leaves to the states the manner of electing
representatives.
US Const, art I, § 4 provides:
The Times, Places and Manner of holding
Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the
Places of choosing Senators.
However, the Congress and the federal courts have imposed
several limitations on the states’ authority in the area of
congressional districting.
In a series of decisions, the
1
US Const, Am XIV, § 2.
2
US Const, art I, § 2.
2
United States Supreme Court has established the primacy of the
principle of “one person, one vote.”
Wesberry v Sanders, 376
US 1, 7-8; 84 S Ct 526; 11 L Ed 2d 481 (1964); Reynolds v
Sims, 377 US 533, 562-564; 84 S Ct 1362; 12 L Ed 2d 506
(1964).
That principle requires that congressional districts
must be constructed so that “as nearly as practicable one
man’s vote in a congressional election is . . . worth as much
as another’s.”
Wesberry, 376 US 7-8.
That standard has been
refined to require that good-faith efforts be made to achieve
precise mathematical equality. Kirkpatrick v Preisler, 394 US
526, 530-531; 89 S Ct 1225; 22 L Ed 2d 519 (1969).
Thus, to
justify any deviation from mathematical equality, it must be
demonstrated that the deviation was either unavoidable despite
good-faith efforts or was necessary to achieve some legitimate
state goal.
Karcher v Daggett, 462 US 725, 731; 103 S Ct
2653; 77 L Ed 2d 133 (1983).
Second, Congress enacted the voting rights act of 1965,3
which, among other things, prohibits state election practices
or procedures that result in “a denial or abridgement of the
right of any citizen of the Untied States to vote on account
of race or color . . . .”
42 USC 1973(a).
See, generally,
Thornburg v Gingles, 478 US 30; 106 S Ct 2752; 92 L Ed 2d 25
(1986); Growe v Emison, 507 US 25; 113 S Ct 1075; 122 L Ed 2d
388 (1993); Reno v Bossier Parish Sch Bd, 520 US 471; 117 S Ct
1491; 137 L Ed 2d 730 (1997): Beer v United States, 425 US
130, 141; 96 S Ct 1357; 47 L Ed 2d 629 (1976).
Third, Congress has imposed a requirement for use of
3
PL 89-110, 42 USC 1973 et seq.
3
single-member districts for the election of representatives.
2 USC 2c.
II. Recent History of Congressional Redistricting
in Michigan
Unlike
Michigan’s
regarding
the
constitutions
Constitution
the
does
procedure
redistricting.5
or
of
not
a
number
include
standards
for
of
any
states,4
provisions
congressional
Thus, the Legislature has been free to adopt
redistricting plans in any manner it chose, consistent with
federal requirements.
However, before 2001 PA 115, the
Michigan Legislature last enacted a congressional districting
plan in 1964.
1964 PA 282.
The Legislature failed to
redistrict the state following the next three censuses, and
the federal courts ultimately adopted plans that have been
used since 1972.
See Dunnell v Austin, 344 F Supp 210 (ED
Mich, 1972); Agerstrand v Austin, No. 81-50256 (ED Mich,
unpublished opinion issued May 20, 1982); Good v Austin, 800
F Supp 557 (ED & WD Mich, 1992).
III.
Michigan Redistricting Legislation
Three Michigan statutes are relevant to the issues raised
in this case—1999 PA 221 and 222, passed in anticipation of
the redistricting process following the 2000 census, and 2001
PA 115, the redistricting plan at issue in this case.
A.
1999 PA 221—The Substantive Statute
4
E.g., Ariz Const, art IV, § 1; Cal Const, art XXI, § 1;
Mo Const, art III, § 45; Wash Const, art 2, § 43.
5
Proposals to include such provisions were considered at
the Constitutional Convention, but were not adopted. See 2
Official Record, Constitutional Convention 1961, pp 2392,
2409-2410, 2412-2414.
4
1999
PA
221
provided
a
redistricting congressional seats.
legislative
process
for
It set November 1, 2001,6
as the deadline for legislative action, MCL 3.62, and then, in
MCL
3.63,
districts.
established
standards
to
be
used
in
drawing
MCL 3.63(a) and (b) incorporated the federal
constitutional and statutory requirements.7
In this action,
plaintiffs do not claim that the legislative plan fails to
comply with those provisions.8
6
MCL 3.63(c) then created
And every 10 years thereafter.
7
Except as otherwise required by federal law
for congressional districts in this state, the
redistricting plan shall be enacted using only
these guidelines in the following order of
priority:
(a) The constitutional guideline is that each
congressional
district
shall
achieve
precise
mathematical equality of population in each
district.
(b) The federal statutory guidelines in no
order of priority are as follows:
(i) Each congressional district
entitled to elect a single member.
shall
be
(ii) Each congressional district shall not
violate section 2 of title I of the voting rights
act of 1965, Public Law 89-110, 42 USC 1973.
The inclusion of the federal guidelines for districting
in MCL 3.63(a), (b) represents an appropriate recognition of
the controlling federal law. However, those guidelines derive
their force not from the act of the Michigan Legislature, but,
rather, from the underlying federal constitutional and
statutory provisions.
8
The parties have informed the Court that an action has
been filed by other plaintiffs against the Secretary of State
in the United States District Court for the Eastern District
of Michigan that does raise federal challenges to the
redistricting statute.
O’Lear v Secretary of State,
No. 01-72584. They report that a three-judge panel has been
convened and that the district court has denied a motion to
expedite the scheduling of a conference, but that no further
5
“secondary” guidelines.
The first priority was contiguity of
districts, followed by provisions involving breaking county
and municipal lines.
MCL 3.63(c) provides:
The secondary guidelines in order of priority
are as follows:
(i) Each congressional district shall consist
of areas of convenient territory contiguous by
land. Areas that meet only at points of adjoining
corners are not contiguous.
(ii) Congressional district lines shall break
as few county boundaries as is reasonably possible.
(iii) If it is necessary to break county lines
to
achieve
equality
of
population
between
congressional districts as provided in subdivision
(a), the number of people necessary to achieve
population equality shall be shifted between the 2
districts affected by the shift.
(iv) Congressional district lines shall break
as few city and township boundaries as is
reasonably possible.
(v) If it is necessary to break city or
township lines to achieve equality of population
between congressional districts as provided in
subdivision (a), the number of people necessary to
achieve population equality shall be shifted
between the 2 districts affected by the shift.
(vi) Within a city or township to which there
is apportioned more than 1 congressional district,
district lines shall be drawn to achieve the
maximum compactness possible.
(vii) Compactness shall be determined by
circumscribing each district within a circle of
minimum radius and measuring the area, not part of
the Great Lakes and not part of another state,
inside the circle but not inside the district.
(viii) If a discontiguous township island
exists within an incorporated city or discontiguous
portions of townships are split by an incorporated
city, the splitting of the township shall not be
considered a split if any of the following
circumstances exist:
action has been taken in the federal litigation.
6
(A) The city must be split to achieve equality
of population between congressional districts as
provided in subdivision (a) and it is practicable
to keep the township together within 1 district.
(B) A township island is contained within a
whole city and a split of the city would be
required to keep the township intact.
(C) The discontiguous portion of a township
cannot be included in the same district with
another portion of the same township without
creating a noncontiguous district.
(ix) Each congressional district shall be
numbered in a regular series, beginning with
congressional district 1 in the northwest corner of
the state and ending with the highest numbered
district in the southeast corner of the state.
B.
1999 PA 222—The Procedural Statute
1999 PA 222 created a mechanism for involving this Court
in the redistricting process.
MCL 3.71 said that the Supreme
Court has exclusive jurisdiction over state claims regarding
congressional redistricting:
The supreme court has original and exclusive
state jurisdiction to hear and decide all cases and
controversies in Michigan's 1 court of justice
involving a congressional redistricting plan.
A
case or controversy in Michigan's 1 court of
justice involving a congressional redistricting
plan shall not be commenced in or heard by the
state court of appeals or any state trial court.
If a case or controversy involves a congressional
redistricting plan but an application or petition
for review was not filed under section 2 or 3, the
supreme court may, but is not obligated to,
undertake all or a portion of the procedures
described in section 4.
The statute then provided two ways for actions to be
brought.
First, MCL 3.72 says that if the Legislature passes
a redistricting plan by November 1, 2001, any voter may seek
review of the plan:
Upon the application of an elector filed not
later than 60 days after the adoption of the
enactment of a congressional redistricting plan,
7
the supreme court, exercising original state
jurisdiction
may
review
any
congressional
redistricting plan enacted by the legislature, and
may modify that plan or remand that plan to a
special master for further action if the plan fails
to comply with the congressional redistricting act.
On the other hand, if the Legislature fails to act by the
deadline, under MCL 3.73, a political party or member of the
House of Representatives may request this Court to develop a
redistricting plan:
Unless legislation enacting a redistricting
plan for congressional districts is approved on or
before
the
deadline
established
in
the
congressional redistricting act, a political party,
or a member of the United States house of
representatives on or after November 2 immediately
following
the
deadline
established
in
the
congressional redistricting act, may petition or
otherwise file pleadings or papers with the supreme
court requesting that the supreme court prepare a
redistricting plan for congressional districts in
compliance
with
the
redistricting
guidelines
provided in the congressional redistricting act.
If an action is filed under either of those provisions,
MCL 3.74 sets forth procedures to be followed:
If an application or petition for review is
filed in the supreme court under section 2 or 3,
the supreme court shall do all of the following:
(a) Exercising original state jurisdiction or
other state jurisdiction pursuant to Michigan court
rule 7.301(A)(7) or any successor court rule,
undertake the preparation of a redistricting plan
for congressional districts.
(b) Appoint and utilize a special master or
masters as the court considers necessary.
(c) Provide, by order, for the submission of
proposed redistricting plans by political parties
and other interested persons who have been allowed
to intervene. Political parties shall be granted
intervention as of right.
(d) After hearing oral argument or appointing
special masters, propose 1 plan for consideration
of the parties and the public, and make that plan
available for public inspection at least 30 days
8
before the time set for hearing in subdivision (f).
(e) Prescribe, by order or otherwise, the
procedure for and the deadlines pertaining to
filing objections and rebuttal to the proposed plan
in
advance
of
the
hearing
scheduled
in
subdivision (f).
(f) Hold a hearing on the proposed plan at a
time determined by the court but not later than
March
1
immediately
following
the
deadline
established in the congressional redistricting act.
(g) In order to provide for the orderly
election process and for candidates to meet
statutory deadlines for filing and residency, and
after making any revisions to the proposed plan
that the supreme court considers necessary, order a
redistricting plan for congressional districts not
later than April 1 immediately following the
deadline
established
in
the
congressional
redistricting act.
C.
2001 PA 115—The Redistricting Act
Following the release of the 2000 census data and the
federal reapportionment of representatives to the states, in
June 2001, the Legislature took up the question of districting
the fifteen seats allocated to Michigan.
The Senate passed a
redistricting plan (SB 546) on June 26, 2001.
consideration
of
the
bill,
two
alternative
During House
plans
were
introduced, but were rejected.9
After final action by the Legislature,10 it adjourned for
9
As one might expect, much of the dispute in the
Legislature was over the political “fairness” of the several
plans.
In this Court, plaintiffs also argue that the
legislatively adopted plan is politically unfair, in the sense
of favoring one of the major political parties over the other.
However, at oral argument they concede that such questions of
political fairness are not incorporated in the statutory
guidelines by which they claim that the plan should be
reviewed.
10
After initial passage of the bill, on July 11 each
house approved an amendment correcting omission of several
census tracts from the description of the districts.
9
the summer recess.
As the bill was being prepared for
submission to the Governor, it was discovered that two census
tracts, including 4,578 people, had been omitted from the
bill’s description of the districts.
The Secretary of the
Senate (the originating house) corrected the language by
inserting the two tracts in the description of District 15 in
the enrolled version of the bill that was presented to the
Governor.
He approved it on September 11, 2001, and it was
filed with the Secretary of State on that date.11
After
the
Legislature
returned
from
its
recess,
on
October 17, 2001, another proposed plan, which plaintiffs
claim is superior to the 2001 PA 115 plan, was introduced.
However, it was never reported out of committee.
IV.
Proceedings in This Case
Plaintiffs filed this action on November 6, 2001, seeking
to invoke the procedures set forth in 1999 PA 222.
They
alleged that 2001 PA 115 was void because the bill signed by
the Governor was not the same one passed by the Legislature,
and that the act violated the redistricting guidelines of
MCL 3.63(c). The named defendants were the Secretary of State
and the Director of Elections.
granted
the
motion
to
intervene
Yentsch, and Van Haitsma.12
On November 29, 2001, we
by
defendants
Anderson,
In that order, we directed the
filing of briefs and included a number of questions that the
11
The Legislature did not vote to give the act immediate
effect, and thus, under Const 1963, art 4, § 27, it will be
effective March 22, 2002.
12
The plaintiffs and the intervening defendants are
individual Michigan voters. However, they are surrogates for
the Democratic and Republican parties, respectively.
10
parties were to address.13
The parties appeared for oral
argument on January 23, 2002.
13
The questions were:
(1) Is
MCL 3.72?
this
action
properly
brought
under
(2)
Is
review
of
the
congressional
redistricting plan by this Court discretionary or
compulsory under 1999 PA 222?
(3) What deference, if any, should this Court
give to the redistricting plan adopted by the
Legislature?
(4) Under separation of powers principles set
forth in Const 1963, art 3, § 2, may this Court
modify or reject the redistricting plan adopted by
the Legislature and adopt its own redistricting
plan?
(5) Do the provisions of MCL 3.74, specifying
the procedures this Court is to follow in reviewing
a congressional redistricting plan, violate Const
1963, art 3, § 2, or art 6, § 5?
(6) Do the standards of MCL 3.63 apply to
review of the redistricting plan adopted in 2001 PA
115?
(A) If the standards of MCL 3.63 apply, are
those standards exclusive?
(i) If they are exclusive, does the provision
of MCL 3.63(c) that the secondary guidelines are
“in order of priority” mean that one does not
consider a criterion of lower priority unless two
plans are equivalent with respect to all of the
criteria of higher priority?
(ii) If they are not exclusive, what other
criteria are applicable?
(B) If the standards of MCL 3.63 do not apply,
what criteria should be used to review a
redistricting plan?
(7) How does one define a “break” of a county
boundary?
(8) How does one define a “break” of a city or
township boundary?
11
V.
Jurisdiction
Plaintiffs premise the jurisdiction of this Court on
MCL
3.71.
However,
the
intervenors
argue
that
the
Legislature’s attempt to confer jurisdiction on this Court is
unconstitutional because the Legislature lacks the authority
to extend our jurisdiction by statute.
The constitutional
provision regarding Supreme Court jurisdiction is Const 1963,
art 6, § 4:
The
supreme
court
shall
have
general
superintending control over all courts; power to
issue, hear and determine prerogative and remedial
writs; and appellate jurisdiction as provided by
rules of the supreme court.
The supreme court
shall not have the power to remove a judge.
The
intervenors
cite
cases
decided
corresponding language of the previous
under
the
Constitution14 holding
that the Legislature lacks the authority to expand Supreme
Court
jurisdiction.
E.g.,
In
re
Manufacturer’s
Freight
Forwarding Co, 294 Mich 57, 69; 292 NW 678 (1940).
However, it is unnecessary for us to decide this issue.
As even the intervenors concede, Const 1963, art 6, § 4,
retains our authority to issue prerogative and remedial writs,
such as mandamus.
This has been the traditional vehicle for
challenging redistricting and apportionment schemes. E.g., In
re Apportionment of the State Legislature—1992, 439 Mich 715,
14
Const 1908, art 7, § 4:
The supreme court shall have a general
superintending control over all inferior courts;
and shall have power to issue writs of error,
habeas corpus, mandamus, quo warranto, procedendo
and other original and remedial writs, and to hear
and determine the same.
In all other cases it
shall have appellate jurisdiction only.
12
717; 486 NW2d 639 (1992); Stenson v Secretary of State, 308
Mich
48,
51;
13
NW2d
202
(1944).
As
a
general
rule,
MCR 3.301(A) provides that complaints for mandamus may not be
considered
by
jurisdiction.
Court
of
the
Supreme
Court
if
a
lower
court
has
However, MCL 3.71 expressly provides that the
Appeals
and
state
trial
courts
do
not
have
jurisdiction of such cases, making an action in this Court
appropriate regardless of whether the Legislature’s effort to
confer
jurisdiction
on
this
Court
would
otherwise
be
effective.15
VI.
Was 2001 PA 115 Validly Enacted?
In keeping with the one-person, one-vote principles, the
Legislature sought to minimize the population disparity among
districts to the greatest extent possible.
In § 4(e)(i) of
2001 PA 115, it said the following about the population of the
districts:
The population of districts 1-9 and 11-15 is
662,563. The population of district 10 is 662,562.
However, after passage of SB 546 by both houses, it was
discovered that two census tracts16 had been omitted from the
15
As explained later, the state statutory guidelines for
redistricting found in MCL 3.63(c) are inapplicable. Thus,
the procedural provisions that the Legislature included in
MCL 3.74 need not be followed, because they are linked to
challenges based on those criteria. Instead, this case has
been processed under our rules for original actions and the
general provisions governing proceedings in this Court, which
permit the use of whatever procedure is appropriate in the
circumstances. MCR 7.304(E), 7.316(A)(7).
16
Census Tracts 416200 and 422900 in Pittsfield Township,
Washtenaw County.
13
bill’s description of the districts.17
4,578 people.
Those tracts include
It is undisputed that totaling the populations
of the districts as described in SB 546, Districts 1-14 had
the totals specified in § 4(e)(i).
However, the description
of District 15 included exactly 4,578 fewer people than the
population of the district stated in that section.
The Secretary of the Senate, in reliance on Rule 12 of
the Joint Rules of the Senate and House of Representatives,18
corrected the bill by inserting references to those census
tracts in the description of District 1519 in the enrolled
bill that was submitted to the Governor, and that he approved.
Plaintiffs argue that because of these events, 2001 PA
115 was not validly enacted, citing Const 1963, art 4, §§ 120
17
The enrolled bill is forty-two pages long. Forty-one
of those pages consist of descriptions of the districts.
Where whole counties, cities, or townships are contained
within a district, there is simply a reference to the county,
city, or township. However, where cities or townships are
split, the act enumerates the census tracts and blocks within
each district. The bulk of the bill consists of lengthy lists
of the census units found within each district.
18
That rule includes the following:
[T]he Secretary of the Senate and Clerk of the
House of Representatives, as the case may be, shall
correct obvious technical errors in the enrolled
bill or resolution, including adjusting totals,
misspellings, the omission or redundancy of
grammatical
articles,
cross-references,
punctuation, updating bill or resolution titles,
capitalization, citation formats, and plural or
singular word forms.
19
There is no dispute that the two tracts are contiguous
to the rest of District 15.
20
The legislative power of the State of Michigan
is
vested
in
a
senate
and
a
house
of
representatives.
14
and 26.21
In addition, this theory implicates Const 1963,
art 4, § 33, which provides:
Every bill passed by the legislature shall be
presented to the governor before it becomes law,
and the governor shall have 14 days measured in
hours and minutes from the time of presentation in
which to consider it.
If he approves, he shall
within that time sign and file it with the
secretary of state and it shall become law.
The parties disagree about whether this was a mere
technical error, which came within the language of Joint
Rule 12.
However, that is not the question.
The courts do
not review claims that actions were taken in violation of a
legislative rule.
As we explained in Anderson v Atwood, 273
Mich 316, 319; 262 NW 922 (1935):
Rules of legislative procedure, adopted by the
Legislature and not prescribed by the Constitution,
may be suspended and action had, even if contrary
thereto, will not be reviewed by the courts.[22]
Thus, whether the action by the Secretary of the Senate
in correcting the omission of the two census tracts was
21
No bill shall become a law without the
concurrence of a majority of the members elected to
and serving in each house.
22
See also State ex rel Spaeth v Meiers, 403 NW2d 392,
394 (ND, 1987); Carlton v Grimes, 237 Iowa 912, 923; 23 NW2d
883 (1946):
With the exception of the few mandatory
provisions noted the Constitution of Iowa has given
the General Assembly a free hand in determining its
rules of procedure.
Whether either chamber
strictly observes these rules or waives or suspends
them is a matter entirely within its own control or
discretion, so long as it observes the mandatory
requirements of the Constitution. If any of these
requirements are covered by its rules, such rules
must be obeyed, but the observance or nonobservance
of its remaining rules is not subject to review by
the courts.
15
authorized by Joint Rule 12 is irrelevant.
The question is
whether the change violates the constitutional provisions
governing
the
enactment
of
legislation.
If
it
does,
compliance with Joint Rule 12 will not save the statute;23 if
it does not, a violation of the legislative rule is not a
basis for finding 2001 PA 115 not to have been validly
enacted.24
The issue is whether the correction by the Secretary of
the Senate was a change that invalidates the statute under the
governing
constitutional
provisions.
Plaintiffs
rely
particularly on language from Beacon Club v Kalamazoo Co
Sheriff, 332 Mich 412; 52 NW2d 165 (1952).
There, through
clerical error, the version of the bill initially presented to
the Governor omitted from the title a reference to an added
section.25
We said:
The inclusion of the reference to the added
section in the title of the measure here involved
was essential to its validity. Its omission in the
original draft of the enrolled act was more than a
mere clerical error. We think it may be assumed
that the legislature considered the section in
question as a material part of the bill.
As a
result of the error in printing, the enrolled act
submitted to the governor differed materially in
substance from the draft of the measure as passed
by the legislature.
[332 Mich 418 (emphasis in
23
See United Ins Co v Attorney General, 300 Mich 200,
206; 1 NW2d 510 (1942).
24
The flaw in the reasoning of the dissent is that it
treats the case as involving review of the Secretary of the
Senate’s action under Joint Rule 12, discussing at length
whether the change made was to correct “obvious technical
errors.” However, as even the dissent recognizes at the end
of that lengthy discussion, the question is “whether the
action is proscribed by the constitution.”
25
The bill as passed by both houses of the Legislature
had the correct, amended title.
16
original).]
The facts of Beacon Club are quite different from those
of
this
case.26
The
language
from
that
case
on
which
plaintiffs rely merely stands for the generally accepted
proposition that a material variation between a bill as
enacted by the Legislature and approved by the Governor
invalidates
the
legislation.27
That
begs
the
question
presented here—whether the addition of the two inadvertently
omitted census tracts constitutes a material change in the
bill.
On several occasions we have permitted correction of
discrepancies in statutes where the legislative intent was
26
The Governor returned the bill to the House of
Representatives with a message indicating that he had not
signed it because of doubts about the constitutionality of the
added section. The Clerk of the House then determined that
the amended title had been inadvertently omitted and had a
correct version printed, which was returned to the Governor,
who signed it.
The issue in Beacon Club was whether the Governor’s
initial return of the document to the House precluded the
Clerk from resubmitting the corrected bill.
This Court
concluded that the previous submission of the incorrect bill
was a nullity and that the legislation should not be
invalidated on the basis of an error that was properly
corrected.
27
For example, in Rode v Phelps, 80 Mich 598; 45 NW 493
(1890), significant amendments of the bill, originally
approved by the Senate, but deleted as a result of conference
committee action and subsequent passage by both houses, were
nonetheless included in the bill as signed by the Governor.
We held that the bill was not validly enacted.
See also
Foster v Naftalin, 246 Minn 181; 74 NW2d 249 (1956); Kenyon v
Kansas Power & Light Co, 254 Kan 287; 864 P2d 1161 (1993).
The corollary of that principle is that immaterial errors
can be corrected without invalidating the enactment. E.g.,
Application of Fisher, 80 NJ Super 523, 527-528; 194 A2d 353
(1963), and Childers v Couey, 348 So 2d 1349, 1351 (Ala,
1977).
17
clear.
For example, in People ex rel Gale v Supervisor of
Onondaga, 16 Mich 254 (1867), the title of the bill as enacted
by the Legislature referred to the levying and collecting of
a “bounty” tax in the Township of Onondaga.
After passage,
through a clerical error, the word “county” was substituted
for “bounty,” and the bill was signed by the Governor with
that mistake.
We rejected the argument that the discrepancy
invalidated the bill, because it was not a mistake that could
mislead anyone who read the act.
16 Mich 258.
In this case, plaintiffs concede that the Legislature
intended to include the two census tracts in District 15.
That conclusion is inescapable given the undisputed population
of the tracts and the population of the districts stated in
2001 PA 115.28
In that sense, the case is like Michigan State
Prison Bd of Control v Auditor General, 149 Mich 386; 112 NW
1017 (1907).
There, a bill appropriated
the sum of one hundred seventy-five thousand
dollars for the purpose of carrying out the
provisions of this act: Provided, That of the one
hundred
seventy-five
[thousand]
dollars
so
appropriated fifty thousand dollars is hereby
appropriated for the purpose of purchasing,
erecting and equipping the necessary buildings,
machinery, boilers and equipment to be used in the
manufacturer of twine and cordage, together with a
warehouse at the State prison at Jackson, Michigan,
28
As explained earlier, the question is not whether the
Secretary of the Senate’s action was authorized by Joint Rule
12.
However, even if one analyzes the issues from that
viewpoint, the dissent can hardly be taken seriously in its
claim that the correction of the bill at issue by the
Secretary of the Senate under Senate Rule 12 was nontechnical
and did not involve adjusting totals. The simple reason is
that § 4(e)(i) of 2001 PA 115 states the exact population for
each district. District 15 was, in short, the only place to
which these census tracts could have been allocated in order
to meet the constitutional population requirements.
The
plaintiffs themselves acknowledged as much at oral argument.
18
and the remaining sum of one hundred twenty-five
thousand
dollars
is
hereby
appropriated
to
constitute a “revolving fund” to be disposed of in
such manner as herein provided.
[149 Mich 387
388.]
The word “thousand” in brackets was not in the bill as
enrolled and signed by the Governor, but was contained in the
bill as passed by both houses of the Legislature.29
As in the
instant case, we found the mathematical equivalence of the
numbers to allow correction of the bill:
It is perfectly manifest that the legislature
by this proviso appropriated $50,000 for the
purpose of purchasing, erecting, and equipping the
necessary buildings, and it is equally obvious that
that $50,000 could not be subtracted from $175, and
that the $175 was plainly intended to mean $175,000
is again made manifest by the fact that in the same
clause after appropriating $50,000 the legislature
further appropriated a remaining $125,000 which
must be a remainder after deducting $50,000 from
$175,000.
It is a clerical error which corrects
itself and leaves nothing doubtful. Such clerical
errors will not be permitted to defect the plain
intent of the legislature. [149 Mich 388 (emphasis
in original).]
Plaintiffs’ response is that this principle does not
apply because one must look beyond the face of 2001 PA 115 to
identify the correct placement of the census tracts. That is,
because the act itself does not include the population figures
29
The dissent attempts to extract from Board of Control
the principle that the only corrections that can be made are
those that “(1) are not essential to the substance of the bill
and (2) mislead no one.” However, some errors are such that,
if uncorrected, they would render a bill internally incoherent
and illogical.
Where the intent is clear, such clerical
errors can be corrected. Board of Control itself is a good
example.
The word “thousand” can certainly be said to be
essential to the substance of the bill:
without its
insertion, the appropriation intended by the Legislature could
not have been implemented.
The point is that, from the
context, it was clear that the word was meant to be included,
just as it is clear in this case that the two census tracts
were intended to be included in District 15.
19
for each census tract, one must resort to external sources to
find that data.30
However, the need to resort to census data
does not invalidate the statute.
The information that one
must examine is the official government data that are required
to be used in congressional redistricting, of which judicial
notice may be taken under MRE 201.31
Further, we have allowed
correction of errors in the text of statutes to reflect the
actual legislative intent, even where that required resort to
sources outside the face of the statute itself.
In Stow v
Grand Rapids, 79 Mich 595, 597; 44 NW 1047 (1890), we examined
several
other
statutes
to
ascertain
the
Legislature’s
intention in the reference to a local act in the title of the
statute in question.
We therefore conclude that the correction of SB 546 by
the Secretary of the Senate to include the two omitted census
tracts in District 15 implemented the clear intent of the
Legislature that the tracts be included in that district and
does not invalidate the statute.32
30
As noted, § 4(e)(i) does include the total population
of each district.
31
See, e.g., Goins v Allgood, 391 F2d 692, 697 (CA 5,
1968); Barnett v Daley, 32 F3d 1196, 1198 (CA 7, 1994).
32
We have located only one other case in which the
question of invalidating a legislative redistricting plan has
arisen because of omission of a portion of the population from
any district. In Harris v Shanahan, 192 Kan 183; 387 P2d 771
(1963), the legislature passed a bill apportioning the state
senate, but, through clerical error, the version of the bill
presented to the governor and signed did not include a city
(with approximately 8,800 people) in any district. The Kansas
Supreme Court declined to insert a reference to the city in
the district in which the legislature apparently intended to
include it.
Without commenting on the correctness of the Harris
20
VII.
Applicability of 1999 Redistricting Guidelines
As set forth above, 1999 PA 221 included guidelines for
future congressional redistricting plans.
Similarly, the
procedural provisions of 1999 PA 222 purport to direct us to
review any enacted redistricting plan for compliance with
those guidelines.
Plaintiffs claim that 2001 PA 115 must be struck down
because it does not comply with the secondary guidelines of
MCL 3.63(c). Particularly, plaintiffs assert that it does not
break as few county boundaries as is “reasonably possible.”
They argue that the alternative plans introduced in the
Legislature in July and October 2001 better meet the “county
break”
criterion,
establishing
legislatively adopted plan.
the
invalidity
of
the
However, we need not reach the
question of 2001 PA 115's compliance with those secondary
guidelines, because we find that the MCL 3.63(c) guidelines
are not applicable.
It is a fundamental principle that one Legislature cannot
bind a future Legislature or limit its power to amend or
repeal statutes.
Absent the creation of contract rights, the
decision under Kansas law, we note that it lacks a critical
feature that is present in this case. In the Kansas case,
state legislative districts were being apportioned, which do
not require the exactness of population equality that must be
used in congressional redistricting.
The Kansas plan
apparently had districts that ranged approximately ten percent
above or below the average population figure. 192 Kan 189.
Thus, it would have been possible to place the omitted city
and its approximately 8,800 people in one of several
districts.
By
contrast,
in
this
case,
the
exact
correspondence of the population of the omitted census tracts
with the population deficit of District 15 makes inescapable
the conclusion that the Legislature intended to place those
tracts in that district.
21
later
Legislature
is
free
to
amend
or
repeal
existing
statutory provisions. See Detroit v Detroit & Howell Plank Rd
Co, 43 Mich 140, 145; 5 NW 275 (1880); Stone v Mississippi,
101 US 814, 816-818; 25 L Ed 1079 (1879).
As we explained in
Atlas v Wayne Co Bd of Auditors, 281 Mich 596, 599; 275 NW 507
(1937):
The act of one legislative body does not tie
the hands of future legislatures. Cooper, Wells &
Co v City of St Joseph, 232 Mich 255 [205 NW 86
(1925)]. The power to amend and repeal legislation
as well as to enact it is vested in the
legislature, and the legislature cannot restrict or
limit its right to exercise the power of
legislation by prescribing modes of procedure for
the repeal or amendment of statutes; nor may one
legislature restrict or limit the power of its
successors. . . .
One legislature cannot enact
irrepealable legislation or limit or restrict its
own power, or the power of its successors, as to
the repeal of statutes; and an act of one
legislature is not binding on, and does not tie the
hands of, future legislatures.
We
recently
reiterated
this
principle
in
Ballard
v
Ypsilanti Twp, 457 Mich 564, 569; 577 NW2d 890 (1998):
[T]he Legislature, in enacting a law, cannot
bind future Legislatures. Malcolm v East Detroit,
437 Mich 132, 139; 468 NW2d 479 (1991); citing
Harsha v Detroit, 261 Mich 586; 246 NW 849 (1933).
Thus, as even plaintiffs concede, the 2001 Legislature was not
bound to follow the guidelines in MCL 3.63(c) adopted by the
1999 Legislature.
It could repeal, amend, or ignore them, as
it pleased.
However, plaintiffs rely on § 4(a) of 2001 PA 115, which
they
believe
constitutes
an
incorporation
of
the
1999
standards in the 2001 districting act:
In adopting the redistricting plan
congressional districts, it is the intention of
legislature to comply fully with section 3 of
congressional redistricting act, 1999 PA 221,
22
for
the
the
MCL
3.63.
The paramount rule of statutory interpretation is to give
effect to the intent of the Legislature.
Tryc v Michigan
Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
We begin with the language of the statute itself, In re MCI
Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164
(1999), and also consider the context in which the language is
used, Crowe v Detroit, 465 Mich 1, 6-7; 631 NW2d 293 (2001).
The parties have not cited any authority relevant to
interpreting an unusual statutory provision such as this one,
in which it is essentially claimed that the substantive
provisions of a statute may be challenged on the ground that
they fail to meet standards set by the statute itself.
In our
view, § 4(a) does not incorporate the 1999 guidelines as an
enforceable provision of 2001 PA 115 that would permit review
of the redistricting plan adopted by that statute.33
Rather,
§ 4(a) is merely part of the Legislature’s explanation of the
principles
it
used
in
developing
the
plan.
This
interpretation is reinforced by the remainder of § 4, which
contains a number of such explanatory provisions that in no
sense could create bases for challenges to the redistricting
plan.
In its entirely, § 4 reads:
All
of
the
following
apply
redistricting plan in section 1:
to
the
(a) In adopting the redistricting plan for
congressional districts, it is the intention of the
legislature to comply fully with section 3 of the
33
Significantly, neither 2001 PA 115 nor House Concurrent
Resolution 34, which further explains SB 546, makes any
reference to review of the plan by this Court or to 1999 PA
222.
23
congressional redistricting act, 1999 PA 221, MCL
3.63.
(b) The number of county breaks in the
redistricting plan is determined by the following
principles:
(i) Breaking a county line means assigning
part of the population of a county to 1 or more
counties in the formation of a district.
(ii) If population is shifted from a county to
a single election district, including a district
from 2 geographically-separate areas, there is 1
break. Except as provided in subparagraph (iii),
if population from a county is shifted to 2 or more
election districts, there are 2 or more breaks.
(iii) If 1 part of a county is shifted to a
district and the rest of the county is shifted to
another district, there is 1 break.
(c) The redistricting plan was designed to
comply fully with both section 2 of the voting
rights act of 1965, Public Law 89-110, 42 USC
1973, and the requirements of the equal protection
clause of amendment XIV of the constitution of the
United States, as set forth in Shaw v Reno, 509 US
630 (1993), and subsequent cases concerning racial
gerrymandering.
In
light
of
these
dual
obligations, the plan avoids any practice or
district lines that result in the denial of any
racial or ethnic group's equal opportunity to elect
a representative of its choice and, at the same
time,
does
not
subordinate
traditional
redistricting principles for the purpose of
accomplishing a racial gerrymander or creating a
majority-minority district. As a consequence, the
plan does not result in retrogression or dilution
of minority voting strength, particularly in light
of the demographic limitations caused by relative
population losses and the neutral criteria set
forth
in
section
3
of
the
congressional
redistricting act, 1999 PA 221, MCL 3.63. However,
the plan does not sacrifice traditional neutral
principles, such as, most importantly, preservation
of county and municipal boundaries, for the purpose
of engaging in a gerrymander that unnecessarily
favors 1 racial group over others.
(d) The plan furthers the underlying purpose
of the state constitution of 1963 by facilitating
effective representation in the legislature where
elected representatives can advance the shared
interests of unified municipalities or counties.
It does so without sacrificing voting rights act of
24
1965 principles, equal electoral opportunities, or
racial fairness.
(e) The redistricting plan for congressional
districts consists of 15 single member districts
comprised of convenient territories contiguous by
land. All of the following apply to the plan:
(i) The population in each of districts 1-9
and 11-15 is 662,563. The population of district
10 is 662,562.
(ii) The number of breaks in county boundaries
is 11.
(iii) The number
township lines is 14.
of
(iv) No congressional
contained within a city.
breaks
in
district
city
is
and
wholly
For example, if the population totals in § 4(e)(i) turned
out to be wrong, that would not be a basis for overturning the
redistricting plan. Rather, the question would be whether the
plan itself meets the federal equal population requirement.
Thus, in context, § 4(a) of 2001 PA 115 constitutes the
Legislature’s
announcement
of
its
conclusion
that
the
redistricting plan it was adopting is in compliance with all
applicable guidelines for redistricting.
Election
function.34
redistricting
is
principally
a
legislative
Legislative action is entitled to great deference
in such matters, and the courts should only intervene when the
Legislature
has
failed
constitutional manner.35
to
perform
its
function
in
a
The Legislature was not bound to
34
Gaffney v Cummings, 412 US 735, 749; 93 S Ct 2321; 37
L Ed 2d 298 (1973); Cotlow v Growe, 622 NW2d 561 (Minn, 2001).
35
Wise v Lipscomb, 437 US 535, 539-540; 98 S Ct 2493; 57
L Ed 2d 411 (1978); Wesch v Hunt, 785 F Supp 1491, 1497 (SD
Ala, 1992), aff’d 504 US 902; 112 S Ct 1926; 118 L Ed 2d 535
(1992); State ex rel Lockert v Crowell, 631 SW2d 702, 706
(Tenn, 1982)
25
follow MCL 3.63(c).
It was, of course, free to consider
those principles that have been historically used by courts in
cases
of
legislative
impasse.36
However,
its
choice
to
consider those principles does not signal an intention to
convert the nonbinding guidelines into a rigid test under
which the plan can be challenged by anyone who claims that
some other plan better meets the guidelines.
VIII.
Conclusion
Congressional redistricting is primarily a function of
the Legislature. Its exercise of that power can be challenged
on
the
basis
redistricting,
of
federal
which
requirements
derive
their
for
congressional
authority
from
the
underlying federal constitutional and statutory provisions,
rather than the Michigan Legislature’s references to them.
However, in this litigation, plaintiffs do not allege that the
redistricting plan adopted by 2001 PA 115 fails in any respect
to comply with applicable federal guidelines.
Whether the
statute was validly enacted is a question that can be raised
as a challenge under the Michigan Constitution, but, on the
facts of this case, the correction of the enrolled bill before
submission to the Governor does not invalidate the statute.
The redistricting guidelines in 1999 PA 221 were not binding
on the Legislature in adopting the 2001 redistricting plan,
and its reference to MCL 3.63(c) does not incorporate those
guidelines into 2001 PA 115 so as to create a basis for
challenging the plan. Accordingly, the application for review
36
See, e.g., Good v Austin, supra, 800 F Supp 563; In re
Apportionment of State Legislature—1982, 413 Mich 96, 140-142;
321 NW2d 565 (1982).
26
of the redistricting plan is denied.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
27
S T A T E
O F
M I C H I G A N
SUPREME COURT
DAVID LeROUX, MICHAEL GRAY,
and ROBERT L. ELLIS,
Plaintiffs,
v
No. 120338
SECRETARY OF STATE and
DIRECTOR OF ELECTIONS,
Defendants,
SUZANNE L. ANDERSON, SHARON
YENTSCH, and BRADLEY VAN HAITSMA,
Intervening Defendants.
___________________________________
CAVANAGH, J. (concurring).
As the arguments by the majority and the very able
dissent demonstrate, it is a close question whether the
variance between the bill as passed by the Legislature and as
approved by the Governor is sufficiently great to prevent 2001
PA 115 from having been validly enacted.
In a sense, as the
dissent notes, the variance is an important one, because
inclusion of the two omitted census tracts is essential to the
constitutionality of the districting plan. On the other hand,
the intent that these two tracts be included in District 15 is
clear, given that their inclusion makes the populations of the
districts correspond exactly to those stated in § 4(e)(i) of
the bill.
The
majority
correctly
notes
that
redistricting
is
primarily a legislative function, and the courts are extremely
reluctant to intervene in the process.
Where we have become
involved in the past, it was because the Legislature and
Governor failed to adopt apportionment plans, and, even as we
developed plans in order to provide for the continuity of
government by ensuring that a constitutionally apportioned
Legislature
could
be
opportunity to act.
elected,
we
have
given
them
every
See In re Apportionment of the State
Legislature—1992, 439 Mich 715, 722, 724; 486 NW2d 639 (1992);
In re Apportionment of State Legislature—1982, 413 Mich 96,
142; 321 NW2d 565(1982).
In
recognition
of
the
inappropriateness
of
judicial
intervention into the redistricting process, the disruption
that would occur in the upcoming election if the matter were
to be returned to the Legislature for reenactment of the plan,
with a return trip to this Court a very real probability, and
the fact that the correction of the bill by the Secretary of
the Senate conformed the bill to the clear intention of the
Legislature, I concur in the result reached by the majority.
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
DAVID LeROUX, MICHAEL GRAY,
and ROBERT L. ELLIS,
Plaintiffs,
v
No. 120338
SECRETARY OF STATE and
DIRECTOR OF ELECTIONS,
Defendants,
SUZANNE L. ANDERSON, SHARON
YENTSCH, and BRADLEY VAN HAITSMA,
Intervening Defendants.
___________________________________
KELLY, J. (dissenting).
Public Act 115 of 2001 suffers from fatal flaws inflicted
on it by the Secretary of the Senate.
As a consequence of her
actions, the bill presented to and signed by the Governor was
never voted on by the Legislature. Hence, it violated the
Michigan Constitution and cannot become law. In addition, the
bill that the Legislature
Governor.
passed was never submitted to the
Hence, it too violated the constitution and never
became law.
The majority's finding that the addition of two census
tracts by the Secretary of the Senate was permissible is
erroneous.
The legal issue regarding it is not accurately
stated in the per curiam opinion.
It is not a question
whether the Court will review the Legislature’s violation of
its own rules. Rather, it is a question whether, in violating
the Legislature’s rules, the Secretary of the Senate exceeded
her authority and violated the state constitution.
I would hold that the additions rendered the act invalid.
The Legislature should be instructed to pass a new act,
following the precepts laid down in the Michigan Constitution.
It
is
for
the
Legislature,
not
this
Court
and
not
the
Secretary of the Senate, to fashion the bill so as to be
legally valid.
The Background
The enrolled bill that the Legislature passed, 2001 PA
115, describes which state governmental units are to be within
which
congressional
description
where
a
districts.
county
or
The
a
act
refines
municipality
is
the
split,
explicitly stating which census tracts and census blocks
belong in which district.1
The Senate passed the bill and sent it to the House of
Representatives.
The House amended and passed the bill, but
later that day, recalled it to make five additions.2
Journal of the House 1575.
2001
The House passed the amended bill
1
For
example,
the
description
Congressional District begins as follows:
of
the
Second
DISTRICT 02
Allegan County (part)
Dorr twp (part)
TRACT 030401 including block(s)
1006, 1007, 1008, 1009 . . . .
2
It was discovered that five census tracts had not been
included. The procedure used to insert them is the one that
should have been used for the two tracts in question here.
2
and the Senate concurred in the amendment. The Senate ordered
the bill enrolled.
After the House and the Senate adjourned, the Secretary
of the Senate added two additional census tracts to the
enrolled
bill.3
Therefore,
the
The
bill
two
the
tracts
Governor
contain
signed
4,578
persons.
allocated
4,578
persons in two census tracts to a congressional district the
constituency
of
which
had
not
been
approved
by
the
Legislature.
"Obvious Technical Errors"
Defendants and intervenors defend the action of the
Secretary of the Senate, arguing that Rule 12 of the Joint
Rules of the Senate and House of Representatives permitted it.
That rule states that the Secretary shall correct "obvious
technical errors."
[T]he Secretary of the Senate and Clerk of the
House of Representatives, as the case may be, shall
correct obvious technical errors in the enrolled
bill or resolution, including adjusting totals,
misspellings, the omission or redundancy of
grammatical
articles,
cross-references,
punctuation, updating bill or resolution titles,
capitalization, citation formats, and plural or
singular word forms.
However, by no stretch of logic did the addition here
involve an obvious technical error.
First, the error is not
in the nature of those listed in the rule.
Where, as in Rule
12, the Legislature describes a concept by using a general
3
The two census tracts are 416200 and 422900. At oral
argument, the intervening defendants informed us that these
tracts lie between Districts 7 and 15. The plaintiffs have
not agreed that these tracts belong where the Secretary of the
Senate placed them.
3
term followed by specific examples, this Court applies the
rule
of
statutory
construction
called
"ejusdem
generis."
Huggett v Dep't of Natural Resources, 464 Mich 711, 718; 629
NW2d 915 (2001).
Under ejusdem generis, general terms are interpreted to
include
only
items
that
are
"of
the
same
kind,
class,
character, or nature as those specifically enumerated." Id.
at 718-719.
errors."
Here the general term is "obvious technical
The specific terms describe minor, nonsubstantive
clerical or grammatical errors.
While more errors than those
specified are envisioned, when ejusdem generis is applied,
they should include solely errors of the same class as those
that are listed.
The
omission
of
census
tracts
does
not
involve
a
misspelling, a grammatical article, punctuation, a title,
capitalization, citation format, or plural or singular word
forms. It does not involve adjusting totals.
It should be
noted that the bill fails to contain a number representing the
population in each listed census tract.
Hence, one cannot
tabulate the total population in any district by totaling the
population of each tract appearing there.
Presumably if, as
defendants assert, 4,578 people were missing from District 15,
one could have ascertained that fact if the tracts listed had
included
a
number
representing
the
population
in
each.
However, even then, one could not have ascertained from the
face of the bill that the missing tracts were 416200 and
422900.
Therefore,
the
error
references, either.
4
does
not
involve
cross
What it does involve is the utter omission of vital,
substantive information. This is an error of a different kind
and class from the "obvious technical errors" listed in Rule
12.
Second, not only does the error here not pass legal
scrutiny as an obvious technical error, it does not pass a
plain language reading either.
"Obvious" means "easily seen,
recognized, or understood; open to view or knowledge . . .
lacking in subtlety." Random House College Dictionary (1988).
A perusal of the bill as passed would never reveal that the
tracts in question were missing.
Documents outside the bill
would have to be consulted to show it.
Hence, as the error is
not open to view or lacking in subtlety, it is not "obvious"
in the commonly understood meaning of the word.
Defendants argue that the error was obvious because the
total population in all the tracts intended for District 15
was listed in the act, 662,563 persons.
They consider the
error obvious because one can discover it by (1) consulting
documents showing the number of people in each of District
15's census tracts, figures not listed in the bill, then (2)
totaling them to determine if they reach 662,563.
If they do
not, one knows that an error was made.
This argument confuses what is obvious with what is
ascertainable.
One must consult the census data for one
county, eight cities, eight townships, and fifty-one census
tracts to learn that the population figure stated in the bill
for District 15 is not met.
Once that has been completed, one
knows only that an error has been made.
5
It could be that the
Legislature miscalculated the total population in District 15.
It could be that one or more tracts are missing.
One could
then search and compare against the bill lists of thousands of
tracts to determine whether certain tracts are not included
and which ones they are.
Hence, even if the Court could
ascertain that tracts 416200 and 422900 belong in District 15,
it can scarcely be said that the mistake is an "obvious"
technical error.
ANDERSON v ATWOOD DISTINGUISHED
The majority cites Anderson v Atwood4 for the proposition
that this Court will not review the Legislature's failure to
comply with its own rules of procedure.
It is true that in
Anderson we did not order recognition of an act that died
after the Legislature withdrew it from the Governor. However,
Anderson is inapposite to the case before us.
Here,
the
bill
did
not
die
because
of
an
alleged
violation of the rules. Rather, Rule 12 was used to alter the
enrolled bill without the approval of the Legislature.
As a
consequence of the distinctly differing facts in the two
cases, the legal question in this case is quite different. It
is whether either a legislative rule or the constitution
authorizes the Secretary of the Senate to add to an enrolled
bill vital, substantive
information not ascertainable from
the bill that the Legislature omitted.
Anderson does not stand for the proposition that this
Court
4
will
not
review
an
action
taken
273 Mich 316; 262 NW 922 (1935).
6
under
a
rule
of
legislative procedure when the action is proscribed by the
constitution.
The addition of substantive items to the bill
in question by the Secretary of the Senate was an action
proscribed by the constitution.
THE APPLICABILITY OF ART 4,
§ 33 OF THE CONSTITUTION
The Michigan Constitution provides that no bill becomes
law without the consent of a majority of the members elected
to and serving in each house.
Const 1963, art 4, § 26.
It
also provides that every bill passed by the Legislature must
be presented to the Governor before it becomes law.
1963, art 4, § 33.
Const
It follows that, since the bill presented
to the Governor in this case was not the one passed by the
Legislature, the constitution was violated.
The majority finds that the changes made in the enrolled
bill were technicalities; hence, they did not substantially
alter the bill passed by the Legislature.
this
Court
does
not
support
that
The precedent of
finding.
Rather,
it
establishes that the only changes permissible in the text of
a bill between passage and submission to the Governor are the
addition of words that (1) are not essential to the substance
of the bill and (2) mislead no one.
Michigan State Prison Bd
of Control v Auditor General, 149 Mich 386; 112 NW 1017
(1907).5
5
In Board of Control the enrolled bill accidentally left
out the word "thousand" in one place when designating $175,000
for the construction of a binder-twine plant at Jackson
prison. The bill passed by the Legislature correctly cited
the amount. This Court found the omission to be unsubstantial
because the word "thousand" was nonessential. It was clear
(continued...)
7
As has been demonstrated herein, the addition of two
census tracts was essential to the substance of the bill. It
is without contest that, without the addition, District 15 was
incomplete and 4,578 people were left without a congressional
district. Also, the addition is misleading.
It causes one to
believe that the Legislature intended the tracts to be in
District 15. The truth appears to be that the Legislature had
no position with respect to these tracts. It simply overlooked
them.
A holding that the action of the Secretary of the Senate
was unconstitutional would be in accord with our decision in
Rode v Phelps6 where we observed, relative to the role of the
Legislature in lawmaking:
The people speak, in the enactment of laws,
through the Legislature, acting within the limits
of the Constitution; and any holding which would
authorize or permit laws, or any part of any law,
to be ordained or created in any other way, would
be inconsistent with the logic of our free
institutions, and dangerous to the safety and
security of the liberties of the people.
It would be consistent, also, with our holding in Stow v Grand
Rapids, 79 Mich 595; 44 NW 1047 (1890).
In that case, we
ruled that the inclusion of immediate effect by the Clerk of
5
(...continued)
from the text of the bill that the intent of the Legislature
was to appropriate $175,000.
By contrast, it is not clear from the text of the bill
here that the Legislature intended any more tracts to be
included in District 15, much less which tracts. It can only
be hypothesized after prolonged study of census data. That is
why Board of Control does not support the majority's argument,
but instead cuts against it.
6
80 Mich 598, 609; 45 NW 493 (1890).
8
the House of Representatives was an unconstitutional addition
to the bill passed by the Legislature.
This state has no case law allowing the addition of
substantive items to a bill between passage and submission to
the Governor. What has been found to be nonsubstantive, by
contrast, has been the omission of a word in an enrolled bill
when the omission is obvious on the bill's face. Board of
Control, supra.
Also nonsubstantative was the second alleged
error in the bill in Stow, supra, because it involved a
typographical error wrongly describing the act to be amended
as an act from 1887, instead of 1877.
The majority’s use of these cases to justify the addition
of substantive items like a census tract permits the Secretary
of
the
Senate
to
engage
legislative intent.
the
Legislature
Michigan.
in
The
in
fact
finding
to
determine
It permits that individual to speak for
a
manner
never
designation
of
before
voting
permitted
districts
is
in
a
legislative decision. Williams v Secretary of State, 145 Mich
447;
108
correction
NW
749
for
(1906).
the
It
cannot
secretary
to
be
add
a
mere
4,578
technical
people
to
a
congressional district.
The case most nearly on point with the one before us was
decided by the Supreme Court of Kansas.
Harris v Shanahan,
192 Kan 183; 387 P2d 771 (1963). It involved apportionment of
the Kansas Legislature.
The bill submitted to the governor
omitted a city of 8,800 people from any senatorial district.
The Kansas court rejected arguments that the omission was
technical and that the court should correct it to prevent
9
constitutional error. In so ruling, it observed
We assume that the intention of both houses of
the legislature and of the governor was to enact a
law which gave adequate senatorial representation
to every citizen of Kansas, including the residents
of the city of Leawood.
No one questions that
fact. But we are confronted with what was done,
not what the legislature may have really intended
to do. [Id. at 786.]
In Harris, as here, the bill passed by both houses of the
legislature was not the bill submitted to and signed by the
governor. The Kansas court found that the defect was one that
the legislature alone could correct.
Since the bill submitted to the Governor in the case
before us contained substantive, not technical, additions, it
was not the bill passed by the Legislature.
And since the
bill passed by the Legislature was never submitted to the
Governor,
art
4,
§
33
of
the
Michigan
Constitution
was
violated.
CONCLUSION
I would hold the Secretary of the Senate's modification
invalid because it violates legislative Rule 12 and, most
significantly, it violates the Michigan Constitution.
Adding
tracts to the description of a legislative district is both a
substantive provision and it is misleading. A fair reading of
Rule 12 based on plain meaning or a statutory construction
using ejusdem generis will not permit us to construe the
omission as an obvious technical error.
The secretary's
change made a substantive alteration to the reapportionment
bill.
As a consequence, the bill passed by the Legislature
was not submitted to the Governor, a violation of the Michigan
10
Constitution. The bill that was passed was never submitted to
the Governor.
The
Hence it never became law.
majority
chooses
to
pass
off
as
nonserious
my
conclusion that the Secretary of the Senate's changes to the
bill were substantive and not a mere adjustment of totals.
However, it does seem serious to me (1) that 4,578 persons
were added to a congressional district without a vote, or even
the knowledge, of the Legislature, (2) that no figures can be
found in this bill that, by any method, can be totaled or
retotalled to assure us that 4,578 people are or are not
missing from District 15, and (3) that no Michigan case law
has ever condoned such a significant and unorthodox amendment
to a legislative bill as the majority has approved here.
To remedy this troubling situation, the Court should
avoid legislating.
the
opportunity
Rather, it should afford the Legislature
to
heed
its
constitutional
mandate
to
reapportion in accordance with art 4, § 33 of the Michigan
Constitution.
If
there
is
to
be
a
judicial
determination
of
congressional reapportionment, it should occur only after the
Legislature
has
shown
itself
unable
to
perform
its
constitutional duty to reapportion.
After remand, should the Legislature be unable to pass a
valid reapportionment bill and give it immediate effect, it
may return to this Court, seeking further and timely relief.7
7
See Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed
2d 506 (1964); California Assembly v Deukmejian, 30 Cal 3d
(continued...)
11
Because
of
the
increasingly
short
timetable
involved
in
preparing for the congressional elections, this Court should
retain jurisdiction of the matter.
It is regrettable that an error on the part of the
Secretary of the Senate should defeat the action of the
Legislature.
This is especially true as the congressional
reapportionment law is of great public importance.
However,
my strict application of the law calling for full compliance
with constitutional requirements is, taking the long view, a
sound one and in the interest of good government.
7
(...continued)
638; 180 Cal Rptr 297; 639 P2d 939 (1982).
12
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