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. 5534 August 2, 1979 CONSTITUTION: Ratification of proposed amendment LEGISLATURE: Re-ratification of proposed amendment The legislature is not required to re-ratify the Equal Rights Amendment proposed by the Congress. Honorable Perry Bullard State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion on the following question: In ratifying the proposed Equal Rights Amendment in Michigan House Concurrent Resolution 524 of 1972, the Legislature included the language in the proposing clause to the amendment referring to the seven-year time limitation for ratification; in light of the three-year extension for ratification, must the Legislature re-ratify the proposed amendment? The proposed Equal Rights Amendment received congressional approval in United States House Joint Resolution 208 on March 22, 1972 and reads as follows: 'Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. 'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That 'The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress: 'SECTION 1. Equality of rights under the law shall not be denied or abridge by the United States or by any State on account of sex. 'SECTION 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 'SECTION 3. This amendment shall take effect two years after the date of ratification.' [Emphasis added] US Code, Congressional & Administrative News, No 4, pp 741-742 (June, 1979) The Michigan Legislature ratified the proposed Equal Rights Amendment in House Concurrent Resolution 524 of 1972, which stated: 'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress: 'ARTICLE ___ 'Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. 'Section 2. The Congress shall have the power to enforce by appropriate legislation the provisions of this article. 'Section 3. This amendment shall take effect two years after the date of ratification. 'Therefore, in the name of, and on behalf of, the people of the State of Michigan, we do hereby ratify, approve and assent to the proposed amendment to the Constitution of the United States. 'Resolved further, That certified copies of this joint resolution be transmitted by the Governor of the State of Michigan, to the President of the United States, the Secretary of State of the United States, the President of the Senate of the United States and the Speaker of the House of Representatives of the United States.' Public and Local Acts of Michigan, Session of 1972, p 1146 On October 6, 1978 Congress approved (1) House Joint Resolution 638, which extended the time for ratification of the Equal Rights Amendment: 'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that notwithstanding any provision of House Joint Resolution 208 of the Ninety-second Congress, second session, to the contrary, the article of amendment proposed to the States in such joint resolution shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States not later than June 30, 1982.' US Code, Congressional & Administrative News, No 4, p 739 (June, 1979) Thus, the issue to be resolved is whether House Joint Resolution 638, extending the time for ratification an additional three years, invalidated Michigan's ratification of the proposed Equal Rights Amendment with its reference to the original seven-year time limit. Article V of the United States Constitution provides: 'The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by Conventions in three-fourths thereof as the one or the other Mode of Ratification may be proposed by the Congress. . . .' [Emphasis added] In Dillon v Gloss, 256 US 368, 376; 41 S Ct 510, 513; 65 L Ed 994, 997 (1921), the court addressed the constitutionality of a congressionally-imposed time limit for ratification in the following manner: '. . . Whether a definte period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its powers to designate the mode of ratification. . . .' Congress having fixed the time for ratification of the proposed constitutional amendment at seven years, the court ruled that the ratification by the states must be sufficiently contemporaneous to reflect the will of the people in all sections of the nation at relatively the same period and found the seven year period for ratification to be reasonable. The United States Supreme Court in Coleman v Miller, 307 US 433, 454; 59 S Ct 972; 83 L Ed 1385 (1939), considered the issue of what is a reasonable time for ratification of a proposed amendment having no prior time limit set for ratification and concluded that the time within which a proposal to amend the United States Constitution must be ratified is a political question for Congress to decide. (2) The decisions in Coleman v Dillon underscore the right of Congress to set a reasonable time for ratification of proposed amendments. OAG, 1973-1974, No 4779, p 33 (May 15, 1973), in reliance on Coleman v Miller, supra, held that the question of whether the State Legislature, having ratified a proposed constitutional amendment, may rescind its action is a political question for determination by Congress. The Michigan legislature in ratifying the amendment proposed by United States House Joint Resolution 208, supra, on June 6, 1972 approved the substance of the proposed amendment to the Constitution of the United States. While the ratifying resolution made reference to the procedural element stating the time for ratification, the Michigan legislature acted within that time and was not required to approve the time frame for other states to give their approval. Thus, its simultaneous action of approving the time frame for ratification was not a necessary element and in no way conditioned its ratification of the proposed amendment. It is, therefore, my opinion that re-ratification of the proposed constitutional amendment is not required. Frank J. Kelley Attorney General (1)
(2)
The court, however, was equally divided on the question of whether the petitioners had standing, and whether any aspect of the amendment process could be subjected to judicial review.