STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5994

September 30, 1981

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2--separation of powers

GOVERNOR:

Executive privilege

LEGISLATURE:

Advice and consent function of Senate

The Governor, in invoking the doctrine of executive privilege, is not an absolute sovereign, nor is the Senate, in requesting documents from persons appointed to public office subject to advice and consent of the Senate, permitted to conduct an unfettered inquisition. Both branches of state government are subject to restraint and responsible to the people. The third branch of government, the judiciary, may, if necessary, balance the competing interests after an in camera review of the documents.

The Senate, in exercising its advice and consent power as to appointments to the head of a principal department, may subpoena documents of a department head addressed to the Governor or his principal advisors. If the Governor, in response to the subpoena, invokes the doctrine of executive privilege which is his right and, in the event the Senate seeks enforcement of the subpoena before an appropriate court, the court will balance the interest of the Governor to maintain confidentiality as to all documents relating to the shaping of policies and the making of decisions by the Governor and the right of the Senate to have information about the qualifications of a person appointed to the head of a principal department.

Honorable William G. Milliken

Governor

The Capitol

Lansing, Michigan

Honorable William Faust

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on questions concerning the authority of the Committee on Senate Administration and Rules to require a newly appointed director of a principal state department to produce copies of official correspondence issued under his or her signature. ⁽¹⁾ The material was requested during the 60 session days following the director's appointment as the head of such department. ⁽²⁾ Your questions relate to the Senate's responsibility to render advice and consent to gubernatorial appointments.

Your questions may be summarized as follows:

These relate to the role of the Senate with regard to the appointment of the head of a principal department.

Const 1963, art 5, Sec. 6 provides:

In Const 1963, art 5, Sec. 3, in pertinent part, the people have provided:

The Executive Organization Act of 1965, 1965 PA 380, Sec. 508, MCLA 16.608; MSA 3.29(508), also provides:

Const 1963, art 5, Sec. 6 prescribes neither standards for the Senate to follow nor guidelines to be adhered to when a nomination by the Governor is under review. In fact, past practice has been that when nominations are rejected no formal reasons are necessarily given and no justifications for the decision presented.

It is within the sole prerogative of the Governor to select individuals deemed most suitable to occupy such office. That prerogative is limited only insofar as necessary to assure that the candidate meets the specific legal qualifications for the position. People ex rel Attorney General v Galbraith, 163 Mich 47; 127 NW 771 (1910).

Once the appointment is laid before the Senate, that body may disapprove it or allow the appointment to stand by inaction extending over 60 session days. The Senate has absolute authority to disapprove an appointment for any reason whatsoever. Its decision is purely a legislative one. Attorney General ex rel McKenzie v Warner, 299 Mich 172; 300 NW 63 (1941); People ex rel Clay v Stuart, 74 Mich 411; 41 NW 1091 (1889); Attorney General ex rel Dust v Oakman, 126 Mich 717; 86 NW 151 (1901); OAG, 1965-1966, No 4531, p 393, 412 (December 27, 1966).

In performing its duty to give advice and consent to gubernatorial appointments, the Senate may quite properly seek all available information relevant to the ability and likelihood of an appointee to effectively administer a state department in the public interest, as well as under the constitutional power of the Senate, to give advice and consent.

It should be noted that both questions are premised on the objections to disclosure having been based upon the Freedom of Information Act, 1976 PA 442, MCLA 15.231 et seq; MSA 4.1801(1) et seq, and the Governor's assertion of executive privilege.

The doctrine of executive privilege is found in no statute. Moreover, efforts to locate any reported Michigan case which is based upon the doctrine of 'executive privilege' have proved fruitless. President George Washington's cabinet is credited with first articulating the principle denoted by that term, though the actual assertion of executive privilege came later. 41-42 University of Missouri Kansas City Law Review, 374, 383 (1974), Executive Privilege to Withhold Information From Congress: Constitutional or Political Doctrine? The consitutional foundation for the doctrine is said to be the separation of powers among the executive, legislative and judicial branches of government. 24 Emory Law J, 405, 406, Comments: United States v Nixon and the Freedom of Information Act: New Impetus for Agency Disclosure?

The United States Supreme Court confronted the issue of executive privilege in United States v Nixon, 418 US 683; 41 L Ed 2d 1039; 94 S Ct 3090 (1974). A grand jury issued an indictment against several individuals charging various offenses including conspiracy to defraud the United States and to obstruct justice. The President of the United States was named as an unindicted coconspirator. At the request of the special prosecutor, the district court issued a third-party subpoena duces tecum directing the President to produce, for the use at the pending criminal trial, certain tape recordings and documents relating to his conversations with aides and advisors. The President moved to quash the subpoena on the grounds that the materials were within his executive privilege against disclosure of confidential communications. The court unanimously upheld the constitutional validity of the doctrine of executive privilege.

In Nixon, supra, 418 US 705, 706, the court stated:

Tracing the practical need and the constitutional foundation for the doctrine of executive privilege, the court held:

Yet, the court rejected the argument that the executive privilege is absolute, unfettered by countervailing values:

Deciding between the opposing constitutional interests of two equal branches of government was held to require a balancing of the respective interests and the court determined that the subpoena duces tecum would be enforced.

United States v Nixon, supra, applied the doctrine of executive privilege to circumstances in which the judicial branch sought disclosure of information for a pending criminal case, not a congressional inquiry. United States v Nixon, supra, 418 US at 712, fn 19. However, the doctrine of executive privilege has also been applied to a senate committee effort to obtain enforcement of a subpoena duces tecum directed to the President. Senate Select Committee on Presidential Campaign Activities v Nixon, 498 F2d 725 (1974). ⁽³⁾

The relative authority of the Michigan Legislature and Governor must be examined to determine whether, or to what extent, the principles of United States v Nixon, supra, and Senate Select Committee on Presidential Campaign Activities v Nixon, supra, are applicable under Michigan law.

Const 1963, art 3, Sec. 2 allocated the powers of government among the three branches as follows:

In People ex rel Sutherland v Governor, 29 Mich 320 (1874), the Michigan Supreme Court explained the nature of that separation of powers, stating:

Thus, though the powers of government are distinct, they are, to a degree, interdependent and are conjoined to form a functional governmental entity. Local 311, State, County & Municipal Workers of America v Dearborn, 311 Mich 674; 19 NW2d 140 (1945). The powers of one branch of government should not be exercised so as to encroach upon the powers, or hinder the independent prerogatives, of a coordinate branch. Michigan Civil Rights Commission v Clark, 390 Mich 717, 726; 212 NW2d 912 (1973); Cooley's Constitutional Limitations, 8th Ed (1927), p 213.

With specific respect to the Legislature, certain principles may be acknowledged as firmly established.

The Legislature is the repository of all legislative powers subject only to limitations and restrictions imposed by the Constitution. The Constitution is not a grant, but is a limitation on the exercise of legislative power. Attorney General v Preston, 56 Mich 177, 179; 22 NW 261 (1885); Toy ex rel Elliott v Voelker, 273 Mich 205, 216; 262 NW 881 (1935); Romano v Auditor General, 323 Mich 533, 536-537; 35 NW2d 701 (1949); Oakland County Taxpayers' League v Oakland County Supervisors, 355 Mich 305, 323; 94 NW2d 875 (1959).

The power to conduct investigations, including investigations of the executive branch of government, has long been deemed to be an incident of legislative power necessary to the enactment of effective and wise laws. ⁽⁴⁾ The Flint & Fentonville Plank-Road Co v Woodhull, 25 Mich 99, 102 (1872); OAG, 1967-1968, No 4606, p 102 (September 20, 1967); McGrain v Daugherty, 273 US 135; 47 S Ct 319; 71 L Ed 580 (1927). However, that power of investigation has been limited to the extent necessary to avoid encroachment on other constitutionally independent prerogatives.

OAG, 1967-1968, No 4606, supra, considered the authority of a special senate committee to investigate the faculty-administration relationships at Central Michigan University based upon the Legislature's constitutional duty to appropriate money for universities and concluded that:

However, OAG, 1967-1968, No 4606, supra, also concluded that the Legislature may not use that investigatory process 'for such irrelevant purposes as the airing of personal disputes or individual grievances, . . .' Also see OAG, 1975-1976, No 4873, p 77 (May 2, 1975).

To implement the Legislature's authority to secure information, a standing or select committee has statutory authority to issue subpoenas. 1952 PA 46, MCLA 4.541; MSA 2.185, Sec. 1 provides:

That subpoena power is available to the Committee on Senate Administration and Rules. ⁽⁵⁾

OAG, 1975-1976, No 4998, p 418 (April 22, 1976), addressed the question whether, in response to such a subpoena, the Department of Public Health was required to supply the names, addresses and clinical data on citizen participants in a study conducted by the department concerning PBB contaminated foods. Each participant in the study had executed a release to the Department of Public Health which provided that the test would be kept confidential. The release further provided that no information in which the citizen participant was identified would be released except to the individual or his or her physician. Nonetheless, based on the inherent legislative authority to conduct investigations and obtain pertinent information for legislative purposes, it was concluded that the department must provide the committee with the names, addresses and clinical data demanded by subpoena issued by the committee, but members of the committee have a duty to respect the right of privacy enjoyed by the participants in the study.

The legislative and executive branches of government 'are of equal dignity, and within their respective spheres of action equally independent.' ⁽⁶⁾ The freedom of one branch 'from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist.' ⁽⁷⁾ A legislative investigation may pursue its legitimate course, but 'recognition must also be given to the reverse side of the coin.' The legislative power to compel disclosure of information by the executive branch may not be used for 'irrelevant purposes' but must respect the 'traditional independence' of another 'constitutionally established' ⁽⁸⁾ entity. The theory of separate governemtnal powers applies to the state as well as to the United States. Attorney General, ex rel Cook v O'Neill, 280 Mich 649, 653; 274 NW 445 (1937).

Although there are few cases on the subject, a Governor's claim to a privilege of confidentiality has been accepted as a valid state constitutional law doctrine. ⁽⁹⁾ Thompson v German R Co, 22 NJ Eq 111 (1871); Appeal of Hartranft, 85 Pa St 433 (1877). More recently, the Maryland Supreme Court in Hamilton v Verdow, 287 Md 544, 561; 414 A2d 914, 924 (1980), the court acting upon a question certified by a federal district court whether the doctrine of executive privilege prevents the discovery and the in camera inspection of a confidential report as to the handling of a patient at a state hospital, prepared for and at the request of the Governor, ruled that the doctrine of executive privilege derived from the Maryland Constitution, separation of powers, Article 8 of the Maryland Declaration of Rights, noting:

The claim of executive privilege was subject to judicial review based upon an in camera inspection of the document and the balancing of the competing interests.

In essence, what the cases seem to say is that the Governor is not an absolute sovereign, nor is the Senate permitted to conduct an unfettered inquisition within its role of advice and consent. Both branches are, therefore, subject to restraint and must be responsible to the people. The third branch of government, the judiciary, may, if necessary, balance the competing interests through an in camera review of the documents in question.

The foregoing principles and authorities, in context of the questions posed involving two co-equal branches of government, lead me to conclude, and it is my opinion, that as a matter of Michigan constitutional law, the Michigan courts would hold that the doctrine of executive privilege applies to communications, from a department head to the Governor and his principal advisors, which have to do with alternatives in the shaping of policies and the making of decisions by the Governor. However, the invocation of the doctrine may be subject to judicial in camera review in an appropriate court proceeding.

It is further my opinion that a determination as to whether a particular communication must be disclosed requires a balancing of the following factors: (a) the Governor's need for confidentiality, (b) the objectives of the Committee on Senate Administration and Rules, and (c) the necessity for obtaining the information in light of the objectives of the Committee.

Whether the doctrine of executive privilege has been appropriately invoked in this instance may not be determined without an examination of the documents withheld.

It is incumbent, therefore, on both branches of government to seek out means by which the Senate may acquire the greatest amount of information possible about a department head's performance consistent with the Governor's need for confidentiality. United States v American Telephone & Telegraph Co, 551 F2d 384, 394 (1976), 567 F2d 121, 130 (1977). 88 Harvard Law Rev 13, 38-39, The Supreme Court, 1973 Term, Forward: On Presidential Privilege. If deemed necessary to obtain any documents, a subpoena may be issued pursuant to 1952 PA 46, supra. The subpoena must be as specific as possible as to the documents it wishes to secure. Should the dispute remain unresolved, and in the event the Senate seeks enforcement of the subpoena, the courts will determine the matter.

Finally, I am advised that in determining which correspondence to release to the Committee on Senate Administration and Rules, the Governor and the department directors were guided by the standards set forth in the Freedom of Information Act, supra. However, the Legislature has chosen to exclude itself from that statute by its definition of a 'person', Freedom of Information Act, supra, section 2(a). That statute grants rights, and imposes limitations, in connection with the statutorily defined 'person' obtaining access to public records. A legislative committee would not constitute such a 'person'. See OAG, 1979-1980, No 5500, p 255 (July 23, 1979). Accordingly, it is not necessary to discuss the applicability of the exemption provisions set forth in the Freedom of Information Act, supra.

Frank J. Kelley