The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5528

August 3, 1979

INITIATIVE:

Petitions to amend or repeal existing law

CONSTITUTIONAL LAW:

Initiative petition

ELECTIONS:

Initiative

CONSTITUTION OF MICHIGAN:

Art 2, Sec. 9 (initiative petitions)

The people may initiate legislation to amend or repeal 1968 PA 284, chap 2.

In the event that there are insufficient signers on an initiative petition for the November general election ballot of 1980, the same petition forms may be circulated for filing for the 1982 general election ballot.

Honorable Gilbert J DiNello

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion with respect to certain procedures for circulating initiative petitions to repeal the nonresident city income tax authorized by the Uniform City Income Tax Ordinance, contained in 1964 PA 284, chap 2, et seq; MCLA 141.601 et seq; MSA 5.3194(11) et seq. Your questions are:

'1. Inasmuch as these initiative petitions would be attempting to repeal an existing law, and no referendum petitions were filed, . . . can citizens now file initiative petitions?

'2. If the circulators find, as they approach the 160 day submission date prior to the election, they do not have sufficient signatures to place the issue on the 1980 General Election ballot, can they continue to circulate in anticipation of having the required number by 1982? Or, is there a time limit between the date of the first signature and the date of the last?'

Initiative and referendum are governed by the Michigan election law, 1954 PA 116, Chapter XVII, Sec. 471, et seq; MCLA 168.471 et seq; MSA 6.1471 et seq and Const 1963, art 2, Sec. 9, which states:

'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 initative 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.' (emphasis added)

There can be no question but 1964 PA 284, supra, was subject to referendum by the people in accordance with Const 1963, art 2, Sec. 9, supra. The time to seek a referendum has passed, and therefore, 1964 PA 284, supra, is no longer subject to referendum.

However, there is nothing to preclude the initiation of a law to amend or repeal 1964 PA 284, supra. An initiative of amendatory legislation is consistent with the principle that constitutional provisions which reserve to the people a direct legislative voice ought to be liberally construed. Michigan Farm Bureau v Secretary of State, 379 Mich 387; 151 NW2d 797 (1967).

It is my opinion, therefore, that the people may initiate legislation to amend or repeal 1964 PA 284, chap 2, supra.

In regard to your second question, 1954 PA 116, Sec. 471, supra, requires that petitions seeking an initiative to be filed at least 120 days before the election.

In OAG, 1973-1974, No 4813, p 171, 174 (August 13, 1974), it is stated:

'In other words, petitions and the signatures affixed to them are valid for as long as a particular basis (votes cast) remains in effect. 1963 Const, art 12, Sec. 2 and art 2, Sec. 9, both provide that the requisite number of signatures to initiative petitions is to be determined by a set percentage of votes cast for all candidates for governor at the last preceding general election at which a governor was elected. Therefore, the term for governor determines the time periods during which petitions may be circulated for signature and any signatures gathered during such a period are valid. Under 1963 Const, art 5, Sec. 21, the governor serves a period of four years. Hence, signatures on petitions are to be considered valid so long as they are gathered during a single four-year term bounded on both sides by a gubernatorial election.'

The vote for the office of Governor in 1978 general election, as certified by the State Board of Canvassers, establishes the current basis for the circulation of initiative petitions. The identity of petitions circulated during the current term of the Governor are inseparably linked with the basis established by the November, 1978 election. Thus, the vote for Governor will be the basis of all initiative petitions circulated until the November, 1982 general election establishes a new basis.

It is my opinion, therefore, that in the event circulators of an initiative petition have insufficient signatures to file the petition for the 1980 general election ballot, they may continue to circulate the same petition forms for filing for the 1982 general election ballot.

Frank J. Kelley

Attorney General