STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5713

May 16, 1980

COUNTIES:

Apportionment commission

Charter commission districts

An official apportionment plan establishing charter commission districts based upon the 1970 United States official census is operative until the 1980 United States official census figures are available.

When such official census figures become available, a county apportionment commission may establish new charter commission districts provided that the county board of commissioners has adopted a resolution proposing that the question of electing a charter commission to write a county home rule charter be presented to the county electors.

Honorable William A. Ryan

State Representative

The Capitol

Lansing, Michigan

Honorable Thomas H. Brown

State Representative

The Capitol

Lansing, Michigan

1966 PA 293, as last amended by 1980 PA 7; MCLA 45.501 et seq; MSA 5.302(1) et seq, establishes procedures for the calling of an election for the submission to the electors of a county the question of electing a charter commission to frame a county home rule charter and for the election of charter commissioners.

Pursuant to the provisions of 1966 PA 293, supra, the Wayne County Board of Commissioners, on March 16, 1972, adopted a resolution calling for submission to the electors of Wayne County the question of electing a charter commission to frame a county home rule charter and for the election of charter commissioners. Thereafter, the Wayne County Apportionment Commission, on April 14, 1972, entered an order establishing charter commission districts based upon the 1970 United States official census. No appeal seeking judicial review of the order was sought in the Court of Appeals. When the electors voted upon the question of electing such a charter commission, the electors disapproved the proposition and the charter commissioners were never elected.

The Wayne County Board of Commissioners, on April 3, 1980, once again passed a resolution providing that the question of electing a charter commission to frame a county home rule charter to be submitted to the electors.

Based upon these facts, you request my opinion on the following questions:

The authority of a county board of commissioners to enact a resolution providing for the submission of the question of electing a charter commission to frame a home rule charter for submission to the electorate of the county is conferred by 1966 PA 293, supra, Sec. 2. This section was not amended by 1980 PA 7.

Once the resolution calling for an election on such a question is adopted, 1966 PA 293, supra, Sec. 5, imposes certain duties on a county apportionment commission to establish charter commission districts within 30 days after adoption of the resolution. The Wayne County Apportionment Commission discharged its duty thereunder on April 14, 1972 by its order establishing the boundaries of the charter commission districts.

The records of the Court of Appeals indicate that no appeal seeking judicial review of the 1972 order of the Wayne County Apportionment Commission was ever filed. Under the plain language of 1966 PA 293, Sec. 5(g), supra, the order became final and shall be the official apportionment plan until the 1980 United States official census figures are available. Where the Legislature has spoken plainly, effect must be given to the definite and certain terms employed. City of Grand Rapids v Crocker, 219 Mich 178; 189 NW 221 (1922).

Since the Legislature amended 1966 PA 293, Sec. 5(b), (e) and (g), supra, by means of 1980 PA 7, supra, the impact, if any, of the amendments upon the official apportionment plan adopted by the Wayne County Apportionment Commission may best be assessed by comparing the provision before and after 1980 PA 7, supra, was enacted and became law on February 13, 1980.

Prior to amendment by 1980 PA 7, supra, 1966 PA 293, Sec. 5(b), (e) and (g), supra, provided as follows:

After their amendment and renumbering as subsections (2), (5) and (7) by 1980 PA 7, supra, 1966 PA 263, Sec. 5(2), (5) and (7), supra, read as follows:

So compared, the legislative changes in 1966 PA 293, Sec. 5(2), (5) and (7), supra, are not significant. The 1972 apportionment plan adopted by the Wayne County Apportionment Commission remains the official apportionment plan. None of these provisions authorize the county apportionment commission to make changes in the official apportionment plan or to adopt a new apportionment plan until the 1980 United States official census figures become available. It is not expected that these official census figures will be available before 1981.

That this was the legislative intent is confirmed by a study of the legislative history of the enactment of 1980 PA 7, supra. It has been held that legislative intent may be determined by a study of the legislative history of a statute. Rapid R Co v Michigan Public Utilities Commission, 225 Mich 425; 196 NW 518 (1923). Senate Bill 652 was passed by the Senate only after a substitute and amendments were adopted. 1979 Senate Journal, No 113, p 2450. The House of Representatives also approved its own substitute, 1979 House Journal, No 134, p 3048, and it is the consideration of the substitute which underscores the legislative intent that official apportionment plans were to remain operative until the 1980 United States Official Decennial Census figures were to become available.

The House Substitute proposed to amend 1966 PA 293, 5(b), supra, renumbered as subsection (2), as follows:

Page 3a Line

Page 4 Line

On third reading, Representatives Symons, Richard A. Young, Anderson, Mahalak, Sheridan and Owen moved to amend the House Substitute Bill as follows: 'Amend page 4, line 4 after 'THE' by striking out 'latest', and inserting '1980'.' This amendment failed on the following vote: Ayes 41; Nays 55. 1979 House Journal, No 134, p 3050. Thereafter, the House Substitute Bill was enacted without further significant change. 1979 House Journal, No 134, p 3057.

Passage of such resolution by a county board of commissioners imposes a duty upon a county apportionment commission under 1966 PA 293, Sec. 5(2) supra, to establish charter commission districts. Where an official apportionment plan adopted by the county apportionment commission in accordance with 1966 PA 293, Sec. 5, supra, is extant, the statute prohibits and county apportionment commission from adopting a new plan until the latest United States official census figures are available. However, had the Legislature amended 1966 PA 293, Sec. 5(2), supra, by approving the amendment proposed by Representatives Symons, Richard A. Young, Anderson, Mahalak, Sheridan and Owen as an approved part of amendatory 1980 PA 7, the legislative intent would be plain that even though a resolution were adopted by a county board of commissioners prior to the 1980 United States official census figures becoming available, the election of charter commissioners to draft the county home rule charter would have to await a new apportionment plan to be adopted by the county apportionment commission relying upon the 1980 official census figures becoming available, since the official county apportionment plan would have to be based upon the 1980 United States official census figures.

Thus, the intent of the Legislature is manifest that official apportionment plans adopted under 1966 PA 293, Sec. 5, supra, upon becoming final, would be operative until the 1980 United States official census figures become available in 1981.

This legislative mandate does not offend the Equal Protection Clause of the United States Constitution. The United States Supreme Court has recognized that where members of legislative bodies must be elected from districts on a one-man, one-vote standard, the reapportionment of the districts need not be performed more frequently than once every decade. Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964). Further, it has also been held that a state statutory scheme for the formulation of districts from which delegates are to be elected to a state constitutional convention to draft a state constitution for approval of the electors need not be conducted on a one-man, one-vote basis. Drishell v Edwards, 518 F2d 890 (CA 5, 1975), aff'd 425 US 956; 96 S Ct 1735; 48 L Ed 2d 201 (1976).

Thus, it must be concluded that a county apportionment commission has no authority to revise an official apportionment plan adopted in 1972 until the 1980 United States official census figures are available.

It is, therefore, my opinion that the Wayne County Apportionment Commission, in the absence of the 1980 United States official census figures, is without statutory power to reapportion the charter commission districts during 1980 and persons seeking nomination for office of charter commissioner may file petitions from the districts as determined in the 1972 order of the Wayne County Apportionment Commission.

Turning to your second question, the authority of a county apportionment commission to adopt an apportionment plan to establish charter commission districts is triggered by the resolution of a county board of commissioners adopted pursuant to 1966 PA 293, Sec. 2, supra, calling for an election to vote on the question of electing a charter commission to draft a county home rule charter for submission to the county electors.

Assuming the electors of Wayne County approve the question of electing a charter commission, the charter commissioners are required to be elected in accordance with 1966 PA 293, 5(3), supra; must hold their first meeting no later than 20 days after certification of their election, 1966 PA 293, supra, Sec. 9; complete their organization within 30 days thereafter, 1966 PA 293, supra, Sec. 10; and complete the draft of the proposed charter within 180 days after the completion of organization, 1966 PA 293, supra, Sec. 11.

It must be noted that 1966 PA 293, Sec. 10, supra, was amended by 1980 PA 7, supra. While the Legislature was aware of the impending 1980 United States official census, it did add subsection (4) to 1966 PA 293, Sec. 10, supra, to read:

When the Legislature enacted 1980 PA 7, supra, to amend 1966 PA 293, supra, it was cognizant of the impending 1980 United States official census, but did not add any requirement that upon completion of such census and the availability of its figures that a standing charter commission must be dissolved, the county apportionment commission reapportion the charter commission district anew and a new charter commission must be elected.

Assuming that the charter commission is authorized by the electors and that the commission has not completed its work when the 1980 United States official census figures become available in 1981, it must be concluded that 1966 PA 293, supra, as last amended by 1980 PA 7, supra, neither empowers the county apportionment commission to adopt a new apportionment plan nor requires the election of new commissioners thereunder.

On the other hand, assuming that the Wayne County electors disapprove the question of electing a charter commission to frame a county home rule charter in 1980, and that the Wayne County Board of Commissioners were to adopt a new resolution calling for an election on the question in 1981, the 1980 United States official census figures then being available, the Wayne County Apportionment Commission would be required to establish charter commission districts as equal in population as possible based upon the 1980 official census figures. 1966 PA 263, Sec. 5(2), supra.

It is my opinion, therefore, that, assuming the Wayne County Charter Commission is functioning when the 1980 United States official census figures become available, the Wayne County Apportionment Commission may not reapportion the charter commission districts and new charter commissioners may not be elected thereunder because 1966 PA 293, supra, does not so provide.

Frank J. Kelley