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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. 6207

March 6, 1984

HOUSE OF REPRESENTATIVES:

Mass mailings to persons in districts

LEGISLATURE:

Apportionment--effective date of legislative districts

A member of the House of Representatives may, on and after April 1, 1984, communicate with persons residing within the House district as constituted by 1983 PA 256, Sec. 2, in which the member resides.

Honorable Gary M. Owen

Speaker of the House

State Capitol

Lansing, Michigan

Honorable J. Michael Busch

House Minority Leader

State Capitol

Lansing, Michigan

In your letter of request for my opinion, you state:

'1983 Public Act 256, Section 2, creates 110 new representative districts. Section 5 of that Act provides that the new representative districts created under Section 2 shall take effect April 1, 1984.

'For several years the House has limited members' mass mailings to persons residing in their district.

'The question we now have is whether, after April 1, [1984] legislators may, in conformity with that ruling, communicate through mass mailings paid for with public funds with persons in their new districts?'

The limitation upon mass mailings to persons residing in their district is based upon a continued policy of permitting such mailings to constituents of a representative's existing district. The most recent policy directive was issued by the Speaker of the House of Representatives on January 5, 1984 that such mailings may be sent to 'constituents located within the existing 1983-84 boundaries of a Representative's district.'

The present members of the House of Representatives were elected from districts whose boundaries were determined by the Order of the Michigan Supreme Court as set forth in In re Apportionment of State Legislature--1982, 413 Mich 96; 321 NW2d 565, app dis, sub nom, Kleiner v Sanderson, ---- US ----; 103 S Ct 201; 74 L Ed 2d 161 (1982). The Michigan Supreme Court assumed jurisdiction and acted after being advised that the Commission on Apportionment created by the people in Const 1963, art 4, Sec. 6, had failed to agree on an apportionment plan upon filing of the 1980 federal decennial census. The court ruled that Const 1963, art 4, Sec. 2, paragraphs2 and 3 (setting up apportionment factors of population and land area and rules for applying such factors in arranging the state into senatorial districts), art 4, Sec. 3, p2 (setting up weighted population and land area formulae for representative districts), and the remaining apportionment rules, including the Commission on Apportionment, contained in Const 1963, art 4, Secs. 2-6, being inextricably interdependent and not severable, to be unconstitutional under the Equal Protection Clause of the United States Constitution.

In rendering the opinion of the court, the majority of the court examined its authority to redistrict the Michigan Legislature, vis-a-vis, the power of the other two branches of state government, and stated:

'The power to redistrict and reapportion the Legislature remains with the people. The people, however, can only exercise that power, as a practical matter, by amending the constitution, which, unless the Legislature proposes an amendment acceptable to the people, is a difficult and time-consuming process. [Footnote omitted.] In the meantime, there must be a Legislature and federal constitutional requirements must be observed.

'It is this Court's responsibility in deciding the severability question to consider and choose among the alternatives for the continuing governance of this state.

'We recognize that the people cannot immediately indicate their preference. This Court must provide for the redistricting and apportionment of the Legislature in compliance with federal constitutional requirements and in a manner most consistent with the constitutional history of this state. The redistricting and apportionment plan resulting from this Court's determination will stand until the people act, or it is changed by the collective action of the other two branches of this government, composed of persons who are the most immediate representatives of the people.' (Emphasis added.) In re Apportionment of State Legislature--1982, supra, 413 Mich 94, 139-140.

The Court appointed a master who drew up an apportionment plan. As modified by the court, the apportionment plan was approved on May 21, 1982. In re Apportionment of State Legislature--1982, supra, 413 Mich 96, 212-214.

Justice Blair Moody, Jr. dissented from the final order of the court, noting that the total population deviation approved by the court between the largest and smallest Senate districts was 39,626 persons (16,26%) and 13,774 persons (16.36%) between the largest and smallest House districts. Since the substantial population deviation occurred in a great number of legislative districts, the result was inequitable, exalting governmental boundaries over people, and impaired the constitutional principle of equal representation. In re Apportionment of State Legislature--1982, supra, 413 Mich 96, 216-219.

It must be stressed, that as the Michigan Supreme Court expressly ruled in In re Apportionment of State Legislature--1982, supra, 413 Mich 96, 140, the apportionment plan of 1982 ordered by the court was to be operative only until 'it is changed by collective action of the other two branches of this government, composed of persons who are the most immediate representatives of the people.' (Emphasis added.)

The other two branches of state government have now acted. The Legislature passed 1983 HB 4481 on December 22, 1983. 1983 House Journal, No. 119, p 2700. The Governor gave his written approval on December 29, 1983, and HB 4481 was enacted into law as 1983 PA 256; MCLA 4.801 et seq; MSA 2.27(801) et seq.

The state is divided into 38 constituted and numbered Senate districts in 1983 PA 256, supra, Sec. 1. The 110 House districts are constituted and numbered in 1983 PA 256, supra, Sec. 2.

The Legislature did not give immediate effect to HB 4481. Thus, 1983 PA 256, supra, becomes generally effective on March 29, 1984, in accordance with Const 1963, art 4, Sec. 27. However, in 1983 PA 256, supra, Sec. 5, the Legislature expressly provided:

'(1) Section 1 shall take effect January 1, 1986.

(2) Section 2 shall take effect April 1, 1984.'

It is interesting to observe that by the enactment of 1983 PA 256, supra, the Legislature has adopted an apportionment plan in which the population deviation between the largest and the smallest House districts is 7,455 persons (8.8%), and the population deviation between the largest and smallest Senate districts is 23,898 persons (9.8%). Unlike the 1982 apportionment plan ordered by the Michigan Supreme Court which contained a great number of legislative districts with substantial population deviations, the legislative districts established by 1983 PA 256, supra, contain less deviation from the ideal legislative district population. The vast majority of House districts are less than 5% from the ideal population of the House district. It is also to be noted that only one Senate district is slightly more than 5% from the ideal population of the Senate district. See, Moody, Jr., J, Dissenting, In re Apportionment of State Legislature--1982, supra, 413 Mich 96, 217-218.

Thus, it may be concluded that the population deviations in the plan approved by the majority of the Michigan Supreme Court in In re Apportionment of State Legislature--1982, supra, have been substantially reduced as to both the House districts and the Senate districts constituted in 1983 PA 256, supra.

It should also be observed that the numbering of the House districts constituted by 1983 PA 256, Sec. 2, supra, parallels exactly the numbering of the House districts previously ordered by the Michigan Supreme Court, and as my office is informed, the members of the House of Representatives presently serving on April 1, 1984 will continue to reside in the same numbered House districts, although the boundaries of the vast majority of reconstituted districts will be different. However, House Districts 25, 43, 44, 70, 73, 74, and 85 are constituted by 1983 PA 256, Sec. 2, supra, with the same boundaries as ordered by the Michigan Supreme Court in 1982. Nevertheless, these districts, in addition to all other House districts, shall exist from and after April 1, 1984 by virtue of their being established by 1983 PA 256, Sec. 2, supra.

The authority of the Legislature to enact 1983 PA 256, supra, to divide the state into 38 senatorial districts and 110 representative districts is not open to question. Indeed, its power was confirmed by the Michigan Supreme court in In re Apportionment of State Legislature--1982, supra. The law-making power has been vested in the Legislature and the Governor. In re Court of Appeals, 372 Mich 227, 228; 125 NW2d 719 (1964). This authority is limited only by restrictions imposed by Const 1963 or the Constitution of the United States. Huron-Clinton Metropolitan Authority v Bd of Supervisors of Five Counties, 300 Mich 1; 1 NW2d 430 (1942).

Nor may the authority of the Legislature to provide that a section of an act is to take immediate effect upon a fixed future date be questioned. An act which provides that it is to take effect subsequent to the general effective date takes effect on the date specified. Price v Hopkin, 13 Mich 318 (1865). All parts of an act need not become effective on the same date. The Legislature may make one part immediately effective and postpone the effectiveness of another part to a later date. Osborn v Charlevoix Circuit Judge, 114 Mich 655; 72 NW 982 (1897).

1983 PA 256, Sec. 2, supra, speaks from April 1, 1984 when it goes into operation. Weaver v Harvey, 32 Mich App 424; 188 NW2d 905 (1971).

By unequivocally specifying that 1983 PA 256, Sec. 2, supra, which divides the state into 110 districts, shall be effective on April 1, 1984, the legislative intent manifest in such provision is that the House district boundaries delineated therein shall be operative on April 1, 1984.

It is instructive that 1983 PA 256, supra, contains no provision making its terms operative as to certain primary and general elections. Rather, the Legislature has made the precise division of the state into 110 House districts immediately effective on April 1, 1984 and the exact division of the state into 38 Senate districts immediately effective on January 1, 1986. Undoubtedly, such action was taken deliberately to permit local election officials to discharge their statutory duties and responsibilities to divide the election precincts as may be necessary to conform to the House districts as established by 1983 PA 256, Sec. 2, supra, so that elections may be held in House districts as provided in the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 16.1001 et seq. Indeed, in order to conduct the August, 1984 primary to nominate candidates for election to the House, the arrangements of precincts must be completed not later than 180 days prior to the primary election. 1954 PA 116, supra, Secs. 656 and 661. The Director of Elections informs my office that the local election officials are presently in the process of dividing the elections precincts to conform to the House districts established by 1983 PA 256, supra, and it is expected that the division of the election precincts will be completed in the very near future.

In the absence of a constitutional restriction, the Legislature's authority to fix April 1, 1984 as the effective date of 1983 PA 256, Sec. 2, supra, may not be challenged.

The House districts ordered by the Michigan Supreme Court in In re Apportionment of State Legislature--1982, supra, were intended to apply only until the elected representatives of the people, the Legislature, and the Governor exercised their legislative authority to fix new legislative district boundaries. The two branches have done so, and, immediately effective April 1, 1984, the division of this state into 110 House districts ordered by the Michigan Supreme Court must give way to the division of the state into 110 House districts ordered by 1983 PA 256, Sec. 2, supra. As of April 1, 1984, the House districts ordered by the Michigan Supreme Court in 1982 shall no longer exist and the House districts created by 1983 PA 256, Sec. 2 shall be in full force and effect.

It follows that after March 31, 1984, communication by a member of the House with citizens residing in a House district, as constituted in 1983 PA 256, Sec. 2, supra, in which the member resides, is not only lawful, but appropriate under the democratic process.

Nor is a different conclusion warranted by the holding of the Michigan Court of Appeals in New Democratic Coalition v Secretary of State, 41 Mich App 343; 200 NW2d 749, lv den, 387 Mich 800 (1972), where a mandamus proceeding was brought to compel the holding of primary and general elections in 1972 for the office of state senator in the middle of the constitutional term of such office. The court held that the Fourteenth Amendment to the Constitution of the United States does not require state senators to be elected under an apportionment plan approved by the Michigan Supreme Court as meeting current constitutional standards at the first primary and general elections thereafter if it would result in the shortening of the constitutional term of office of State Senator. In its decision, the court rejected an argument of plaintiffs that special elections to fill vacancies in the office of State Senator would have to be conducted under the new plan.

The 1972 apportionment plan referred to by the court in New Democratic Coalition, supra, was approved by the Michigan Supreme Court in In re Apportionment of State Legislature--1972, 387 Mich 442, 458; 197 NW2d 249 (1972). The Order of the court stated:

'Therefore, it is ordered that the Commission on Legislative Apportionment be, and it hereby is, directed to adopt and publish forthwith, as provided in Sec. 6 of article 4 of the Michigan Constitution of 1963, the aforesaid Hatcher-Kleiner plan, which plan shall be placed in effect for the primary and general elections of 1972, irrespective of whether or not the said plan shall be challenged upon the application of an elector pursuant to the final paragraph of said Sec. 6 of article 4.

'Nominating petitions may be filed or the statutory filing fees paid for the office of State Representative at any time after the date of this order up to and including 4 p.m., Eastern Standard Time, on June 20, 1972. See MCLA 168.163; MSA 6.1163, and 1 OAG, 1955, No 2,403, p 784 (December 30, 1955).'

The decision contained no other order relating to any primary and general elections for the office of State Senator in 1972 or any other year.

It is my opinion, therefore, that on and after April 1, 1984 a member of the House of Representatives may communicate with persons residing within the boundaries of the House district as constituted by 1983 PA 256, Sec. 2, supra, in which the member resides.

Frank J. Kelley

Attorney General


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