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. 5551

August 28, 1979

CONSTITUTIONAL LAW:

Enactment of legislation not prohibited by United States Constitution or Michigan Constitution

CONSTITUTION OF MICHIGAN:

Art 8, Sec. 3 (State Board of Education)

STATE BOARD OF EDUCATION:

Transacting business by majority of members serving

The statute which requires an affirmative vote of a majority of the members serving on the State Board of Education to transact business does not violate Const 1963, art 8, Sec. 3.

Dr. Eugene T. Paslov

Interim Superintendent of Public Instruction

Michigan National Tower

Lansing, Michigan

You have requested my opinion whether 1964 PA 287, Sec. 4, as last amended by 1979 PA 70, MCLA 388.1004; MSA 15.1023(4), which requires an affirmative vote of a majority of the members serving on the State Board of Education to transact business, violates Const 1963, art 8, Sec. 3.

In Const 1963, art 8, Sec. 3, the people have provided:

'Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith.

'The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law.

'The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law. The governor shall fill any vacancy by appointment for the unexpired term. The governor shall be ex-officio a member of the state board of education without the right to vote.

'The power of the boards of institutions of higher education provided in this constitution to supervise their respective institutions and control and direct the expenditure of the institutions' funds shall not be limited by this section.'

Section 4 of 1964 PA 287, supra, provides:

'A quorum of the state board of education shall consist of a majority of the board's members. An affirmative vote by the majority of the members serving on the board shall be required to transact business. . . .' (emphasis added)

Prior to the amendment of 1979 PA 70, Sec. 4, the State Board of Education could transact business by a majority vote of those voting on the question provided a quorum, i.e., a majority of its members, was present at a meeting. Under the 1979 amendment to 1964 PA 287, Sec. 4, supra, a majority vote of the members serving on the board is now required to transact business.

Under Michigan law, the Michigan legislature may enact any legislation not prohibited by either the United States Constitution or the Michigan Constitution. The state constitution is a limitation upon rather than a grant of power to the legislature. Attorney General, ex rel O'Hara v Montgomery, 275 Mich 504, 538; 267 NW 550, 563 (1936).

A statute enacted by the legislature is presumed to be constitutional. A statute may not be declared unconstitutional unless such statute transcends some limitation upon the power of the legislature. Lake Shore Coach Lines Inc v Secretary of State, 327 Mich 146, 153; 41 NW2d 503, 506 (1950).

The above quoted language of Const 1963 art 8, Sec. 3 does not purport to limit the legislature in terms of enacting legislation regarding the decision making process of the State Board of Education. The Michigan Supreme Court has ruled that the legislature may legislate with regard to the exercise of executive and legislative functions as long as such legislation does not prevent the executive or judicial branches from exercising their power. Michigan Civil Rights Commission v Clark, 390 Mich 717, 726; 212 NW2d 912, 916 (1973). The statute in question, which requires a majority vote of the members serving on the State Board of Education to transact business, does not prevent the State Board of Education from exercising its lawful authority.

In Negri v Slotkin, 397 Mich 105, 107; 244 NW2d 98, 99 (1976), the Supreme Court recognized the authority of the legislature to enact legislation (1) prescribing that a majority of Supreme Court justices constitutes a quorum for hearing cases and transacting business. If the legislature may enact a procedural legislation affecting the Supreme Court, a coequal body created by Const 1963, art 6, Sec. 3, it may also enact that type of procedural legislation concerning the State Board of Education without violating Const 1963, art 8, Sec. 3.

Therefore, it is my opinion that 1964 PA 287, Sec. 4, supra, which requires an affirmative vote of a majority of the members serving on the State Board of Education to transact business does not violate Const 1963, art 8, Sec. 3.

Frank J. Kelley

Attorney General

(1) RJA 211(3); MCLA 600.211(3); MSA 27A.211(3).