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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. 6603

October 9, 1989

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2--legislative review and/or approval of proposed expenditures or selection of contractor by executive department

Const 1963, art 4, Sec. 24--conditions upon appropriations within the object in the title to appropriation act or embracing a second object not expressed in title

Const 1963, art 4, Sec. 25--impact of appropriations in an appropriation act upon statute stating intent to appropriate funds

Const 1963, art 4, Sec. 31--delegation of legislative authority to appropriate money to state budget director and to certain legislative committees

Const 1963, art 9, Sec. 17--delegation of legislative authority to appropriate money to state budget director and to certain legislative committees

Where the Legislature declares in a statute an intent to appropriate certain moneys in ensuing fiscal years, it may increase or decrease those moneys as it sees fit and need not amend the statute pursuant to Const 1963, art 4, Sec. 25, when authorizing the appropriation.

Provisions in an appropriation act constituting lawful conditions or restrictions upon an appropriation contained in that act do not add a second object to the act in violation of Const 1963, art 4, Sec. 24.

The Legislature may not create a permanent advisory board in an appropriations act without violating Const 1963, art 4, Sec. 24.

The Legislature may require an executive branch department to provide informational reports to a legislative committee, but may not require the department to obtain prior legislative committee, subcommittee or committee or subcommittee chairperson approval of expenditures or decisions without offending Const 1963, art 3, Sec. 2.

Const 1963, art 4, Sec. 31, and art 9, Sec. 17, prohibit the Legislature from delegating the authority to appropriate funds to the state budget director and the Senate and House appropriations committees.

The Legislature may not, in the absence of sufficient standards in the appropriations act, authorize the director of an executive branch department to exercise the legislative power to reduce appropriations without violating Const 1963, art 3, Sec. 2.

The validity of provisions of the following appropriations acts under Const 1963, art 3, Sec. 2, Const 1963, art 4, Secs. 24, 25 and 31, and Const 1963, art 9, Sec. 17, is examined:

1988 PA 289, Sec. 301,

1988 PA 324, Secs. 301(4), 302, 403, 414, 419(6) and 605,

1988 PA 271, Sec. 711(1),

1988 PA 300, Sec. 305, and

1988 PA 305, Secs. 315(4), 329(1), 332, and 414(2) are constitutional;

1988 PA 324, Sec. 404,

1988 PA 288, Sec. 904 (underscored sentence only),

1988 PA 289, Sec. 701,

1988 PA 299, Sec. 301 (underscored portion only), Sec. 905 (underscored portion only), Sec. 1107(2) (underscored portion only), and Sec. 1107(3),

1988 PA 302, Sec. 1120(7) (underscored portion only),

1988 PA 303, Secs. 211(3) and the line item entitled "DEPARTMENTWIDE APPROPRIATIONS ... Director's discretionary reduction,"

1988 PA 305, Sec. 304(4) (underscored portion only), Sec. 421 (underscored portion only), and Sec. 429 (underscored portion only),

1988 PA 319, Sec. 1701 and the line item entitled "EMPLOYMENT SAVINGS ... Employment reduction," and

1988 PA 323, Secs. 841 and 850, are unconstitutional.

Honorable William Faust

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on several questions which relate to various appropriations acts for certain state departments for fiscal year ending September 30, 1988 and September 30, 1989. In your correspondence, you note that each of these acts contain material which you believe raises various constitutional questions. I will consider each group of questioned provisions after analyzing the constitutional provisions applicable to that group.

You have requested that 1988 PA 289, Sec. 301, be considered in light of Const 1963, art 4, Sec. 25.

1988 PA 289 makes supplemental appropriations for various state departments for the fiscal year ending September 30, 1988. 1988 PA 289, Sec. 301, provides:

"Of the horse racing money received by the racing commissioner pursuant to Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws, $5,155,000.00 is appropriated and shall be allotted for an agricultural fair, exposition, racing association, and facilities improvement program in the department of agriculture which receives funds from thoroughbred and harness racing, unexpended funds shall be considered carryforward; $500,000.00 shall be appropriated to the cooperative extension service at Michigan state university to develop a program to assist farmers in dealing with the current drought conditions in this state; $100,000.00 shall be appropriated to the agricultural experiment station at Michigan state university for a study relating to water usage for agricultural needs in this state; and $1,500,000.00 shall be lapsed to the general fund."

Const 1963, art 4, Sec. 25, provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length."

Although it is unclear from your letter, you apparently are asking whether 1988 PA 289, Sec. 301, impermissibly amends MCL 431.73; MSA 18.966(43). That section provides that money received by the racing commissioner from various racing fees and taxes shall be credited to the general fund of the state, and further purports to allocate on a continuing basis portions of the revenue received to various purposes.

However, the purported allocations represent merely a stated intent to appropriate certain sums in future years, and the Legislature may, therefore, increase or decrease the amounts as it sees fit. Furthermore, the Legislature need not amend the statute when authorizing such appropriations. OAG, 1983-1984, No 6216, p 277 (April 9, 1984). It follows that the Legislature may appropriate any such funds, which are part of the general fund of the state, for any other purposes without first amending MCL 431.73; MSA 18.966(43).

It is my opinion, therefore, that 1988 PA 289, Sec. 301, does not violate Const 1963, art 4, Sec. 25.

You have also requested that Secs. 302, 403, 404 and 414 of 1988 PA 324 be considered in light of Const 1963, art 4, Sec. 24, which provides:

"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title."

1988 PA 324 is an appropriations act. Your concern is whether each of the sections you have identified was properly included within this appropriations act.

In order to determine whether a provision of law complies with this Const 1963, art 4, Sec. 24, a two-part analysis is required.

First, it must be determined whether the law embraces more than one object. In this regard, the court, in Kent County, ex rel Bd of Supervisors of Kent County v Reed, 243 Mich 120, 122-123; 219 NW 656 (1928), in construing the predecessor of Const 1963, art 4, Sec. 24 (Const 1908, art 5, Sec. 21), stated:

"While the object must be expressed in the title, it is to the body of the law that we must look to determine whether it embraces more than one object....

"....

"The question presented is not one involving the power of the legislature to enact a law, but the manner in which that power has been exercised. The object of a law is the aim or purpose of the enactment. It may authorize the doing of all things which may fairly be regarded as in furtherance of the general object of the enactment.

" 'All the means and ends necessary to the accomplishment of the general object would not be objectionable.' City of Grand Rapids v. Judge of Superior Court, 93 Mich. 469, 472."

This decision was cited and followed in Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 128-129; 240 NW2d 193 (1976), where the court stated:

"In that case [Kent County, ex rel Bd of Supervisors v Reed, 243 Mich 120, 122; 219 NW 656 (1928) ], Justice SHARP [sic] pointed out that the first section of the questioned Act imposed upon the boards of supervisors in all counties where county officials are paid salaries fixed by such boards, the duty to fix such salaries. Section 2 of that act expressly repealed a local act of 1891 affecting the county of Kent alone. The Court said:

" 'Can it be said that this repeal is so connected with the object as disclosed by the provision in Sec. 1 that it may be held to be germane to it? We think not. The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other. The repeal of the local act was unnecessary to give legal effect to Sec. 1. The two objects sought to be attained by the enactment have no necessary connection with each other, and, when grouped together in one act, clearly offend the constitutional provision.' Reed, supra, 122-123.

"Both of objects of the law were covered in the title. The Court concluded by saying:

" 'It is clear that two distinct and unrelated objects are embraced in the one act, and that it offends against the constitutional provision. Reed, supra, 124.' "

An act may deal with all matters which directly relate to, carry out and implement the principal object. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973). However, it may not contain provisions which are clearly tangential and have a strained relationship to the principal object. OAG, 1981-1982, No 5930, p 245, 247 (July 1, 1981).

The second part of the analysis of a particular provision of law in light of Const 1963, art 4, Sec. 24, requires a determination of whether the title embraces the object of the act.

The court in Vernor v Secretary of State, 179 Mich 157, 160; 146 NW 338 (1914), in construing Const 1908, art 5, Sec. 21 (the predecessor of Const 1963, art 4, Sec. 24), discussed this aspect as follows:

"What is the constitutional test? We think it is that a title must embrace the object of the act, and the body of the act must not be inconsistent with the title. The pertinent questions should be: Does the title of the act fairly indicate the purpose of the legislation? Is the title a fair index of the act? Does the title of the act fairly inform the legislators and the public of its purposes, as a whole?"

In Continental Motors Corp v Twp of Muskegon, 376 Mich 170, 179; 135 NW2d 908 (1965), the court stated:

"It is sufficient to say only that the title of a legislative act must give notice to legislators and others interested of the object of the law thereby assuring them that only matters germane to the object expressed in the title will be enacted into law."

Finally, in Advisory Opinion re Constitutionality of 1972 PA 294, supra, 389 Mich at 465-466, the court said:

"An act may include all matters germane to its object. It may include all those provisions which directly relate to, carry out and implement the principal object. As a review of the cases will show, the purpose of this constitutional limitation is to insure that both the legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge.

"The provision was recently discussed in Maki v East Tawas, 385 Mich 151 (1971). The majority reaffirmed at p 157 the following principle as quoted in MacLean v State Board of Control for Vocational Education, 294 Mich 45 (1940):

" ' "The constitutional provision was designed mainly to prevent the legislature from passing laws not fully understood, Thomas v Collins [1885], 58 Mich 64; it was intended that the legislature, in passing an act, should be fairly notified of its design, Attorney General, ex rel. Longyear, v Weiner [1886], 59 Mich 580; and that legislatures and parties interested might understand from the title that only provisions germane to the object therein expressed would be enacted, Blades v Board of Water Commissioners of Detroit [1889], 122 Mich 366; and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection, but with a view to combining in their favor the advocates of all--or what is commonly spoken of as log-rolling in legislation. State Mutual Rodded Fire Ins. Co. v Foster [1934], 267 Mich 118." ' "

With this background, it is now appropriate to consider the specific provisions which you have asked to be analyzed in light of Const 1963, art 4, Sec. 24.

The title of 1988 PA 324 states:

"AN ACT to make appropriations for the department of corrections and certain state purposes related to corrections for the fiscal year ending September 30, 1989; to provide for the expenditure of the appropriations; to provide for reports; to provide for the creation of certain advisory committees and boards; to prescribe certain powers and duties of the department of corrections and certain advisory committees and boards; and to provide for the disposition of fees and other income received by certain state agencies."

1988 PA 324, Sec. 302, provides:

"(1) The department shall develop and implement a county jail reimbursement program by January 1, 1989. The department shall administer the county jail reimbursement program and the funds appropriated in section 301(1) for the inmate housing fund shall be used to provide for county reimbursement. The county jail reimbursement program shall reimburse counties for housing convicted felons who would otherwise have been sentenced to a state prison term with a minimum-minimum state felony sentencing guidelines score of 12 months or more. State reimbursement shall be for prisoner housing and custody expenses in the amount of $35.00 per diem per diverted felon. The department shall begin notifying county sheriffs, local judiciary officials, and county commissioners of the reimbursement program by October 1, 1988.

"(2) The department shall report monthly to the senate and house appropriations subcommittees on corrections and the senate and house fiscal agencies on the number of felons diverted by county, the total number of reimbursable days, the actual average monthly operating cost, and the county and total state reimbursement. The report shall include year-to-date statistics."

The primary object of 1988 PA 324 is to provide appropriations for the Department of Corrections. Section 101 of this bill specifically appropriates $27,882,000.00 for the inmate housing fund. Section 301 permits expenditures from that fund for housing provided certain prisoners, up to a limit of $35.00 per diem per diverted felon, in a county jail facility. The provisions of Sec. 302(1) impose conditions or restrictions on that appropriation as it relates to payments to counties for housing convicted felons in county jails. They are, thus, relevant to the object of 1988 PA 324.

Section 302(2) requires that monthly informational reports be provided to various legislative entities. This requirement is similar to that found acceptable in OAG, 1975-1976, No 4873, p 77, 80 (May 2, 1975). See also Regents of the University of Michigan v State of Michigan, 395 Mich 52, 67-68; 235 NW2d 1 (1975), which held constitutional certain statutory provisions which required that the Legislature be provided with information where there was no requirement that the contemplated actions of the university receive legislative approval.

It is my opinion, therefore, that 1988 PA 324, Sec. 302, is constitutional.

1988 PA 324, Sec. 403, provides:

"(1) Included in the appropriation under section 402 is $510,600.00 for the department to administer the community alternative programs. In administering these programs, the department shall provide qualified, technical assistance and program budgeting support to community alternative program vendors to enable them to better serve their clients and to enhance their relationship with the department and the needs of the local criminal justice system. In providing this technical assistance and support, the department shall work closely with individual program vendors to ensure that they understand their contractual responsibilities to the department and that they understand future funding will depend on their program's performance based on objective program performance evaluation criteria that is to be implemented by the department.

"(2) Included in the appropriation under subsection (1) is a sum sufficient for the department to establish 1 position within the community alternative administration staff to serve as a job training and employment specialist. This position will assist service providers and the department's parole and probation staff in utilizing available state and federal funding for job training and employment programs."

Section 101 of 1988 PA 324 specifically appropriates a total of $14,134,300.00 for community alternatives. The provisions of Sec. 403 do nothing more than place certain restrictions or conditions on that appropriation, and, thus, they "relate to, carry out, and implement" the principal object of 1988 PA 324, which is to appropriate funds, including funds for community alternatives. Advisory Opinion re Constitutionality of 1972 PA 294, supra, 389 Mich at 465.

It is my opinion, therefore, that 1988 PA 324, Sec. 403, is constitutional in light of Const 1963, art 4, Sec. 24.

1988 PA 324, Sec. 404, provides:

"(1) The director of the department shall appoint by October 1, 1988 a state community corrections advisory board consisting of 13 members as follows:

(a) One member shall be a county sheriff.

(b) One member shall be a chief of a city police department.

(c) One member shall be a judge of the circuit court or recorder's court.

(d) One member shall be a judge of the district court.

(e) One member shall be a county commissioner.

(f) One member shall be a member of city government.

(g) One member shall represent an existing community alternatives program.

(h) One member shall be a probation officer or a parole officer.

(i) One member shall be a representative of the business community.

(j) One member shall be a representative of the mass communications media.

(k) Three members shall be representatives of the general public.

"(2) The director of the department shall ensure fair geographic representation of the state advisory board membership, and that minority persons and women are fairly represented.

"(3) Members of the state advisory board shall serve for terms of 4 years each, except that of the members first appointed, 4 shall serve for terms of 4 years each, 4 shall serve for terms of 3 years each, and 5 shall serve for terms of 2 years each.

"(4) A vacancy on the state advisory board shall be filled in the same manner as the original appointment.

"(5) Members of the state advisory board shall serve without compensation, but shall be reimbursed by the department for actual and necessary expenses incurred in attending meetings.

"(6) The state community corrections advisory board shall review, comment, and make recommendations to the department concerning existing programs, policies, and procedures and shall evaluate new program initiatives. The advisory board shall work with the community alternative administrative staff in fulfilling its function. The advisory board shall meet on an agreed schedule and report its findings and recommendations to the department. The department shall submit to the senate and house appropriations subcommittees on corrections and the senate and house fiscal agencies a review of each of the advisory board's reports no more than 30 days after the receipt of the advisory board's report."

OAG, 1975-1976, No 4896, p 132, 136-137 (September 9, 1975), considered the constitutionality of an appropriations bill which created an advisory committee and stated:

"The creation of a commission in an appropriations act is virtually identical to the act I reviewed in formal opinion No. 4824, dated July 24, 1974, addressed to Mr. Perry Johnson, Director of the Department of Corrections. In the particular appropriations act for the Department of Corrections in fiscal year 1973-74, nothing suggested the creation of an office of corrections ombudsman. I was constrained to conclude that the act in question embraced more than one object and it contained objects in its body which were not expressed in its title. I am constrained to again construe a section of an appropriations act which creates an advisory committee on the arts in Michigan education, Section 35 of Enrolled Senate Bill 305, to be unconstitutional since there is no reference or suggestion in the title of Enrolled Senate Bill 305 for such an entity and the act embraces more than one object and it contains objects in its body which are not expressed in its title." (Emphasis added.)

1988 PA 324 differs from the appropriations bill in question in OAG, 1975-1976, No 4896, supra, in that its title does contain a reference to the act's creation of certain advisory committees and boards. However, this only satisfies the second prong of the test; i.e., whether the title embraces the object of the act. The first prong of the test requires a determination of whether the law embraces more than one object.

As was determined in OAG, 1975-1976, No 4896, supra, the creation of a commission in an appropriations bill violates Const 1963, art 4, Sec. 24, because the act thereby embraces more than one object.

Additionally, Sec. 404 attempts to create a permanent committee through the vehicle of an appropriations act which, by its title and its terms, has a one-year life span only.

It is my opinion, therefore, that 1988 PA 324, Sec. 404, is unconstitutional in that it violates Const 1963, art 4, Sec. 24.

The Legislature has mandated in MCL 8.5; MSA 2.216, that a statute be construed so that any unconstitutional portion be severed from the rest of the statute and the remaining portions be given effect unless to do so would be inconsistent with the manifest intention of the Legislature. Highland Park v Fair Employment Practices Comm, 364 Mich 508, 520; 111 NW2d 797 (1961), American Youth Foundation v Benona Twp, 37 Mich App 722; 195 NW2d 304, lv den 387 Mich 782 (1972).

1988 PA 324 makes appropriations to the Department of Corrections in the total amount of $614,616,500. There is nothing in 1988 PA 324 to suggest that the Legislature intended its provisions to be nonseverable. The appropriations and the remaining provisions contained in 1988 PA 324 are independent and are capable of being carried without reference to the invalid portion of the Act. Thus, they are valid. See OAG, 1967-1968, No. 4602, p 186 (February 20, 1968), and OAG, 1989-1990, No 6598, p --- (August 30, 1989).

You also ask about 1988 PA 324, Sec. 414, which provides:

"(1) Included in the appropriation under section 402 for community alternative programs is $1,000,000.00 to provide funding for a minimum security jail work camp program for felony offenders. Classification of felony offenders shall be consistent with the department's jail classification instrument. The minimum security jail work camp program is intended to encourage local jurisdictions to expand supervised community work programs and to develop more cost efficient housing for minimum security felony offenders at the local level. The department shall provide interested jurisdictions with technical assistance and seed money for project implementation. The minimum security jail work camp program may provide for alternative punishment programs including community service work and provisions for victim restitution.

"(2) The department shall develop guidelines for use by local jurisdictions for requesting technical assistance and project funding by November 1, 1988.

"(3) Interested jurisdictions shall submit to the department by February 1, 1989 a project proposal as approved by the local governing authority requesting technical assistance.

"(4) Funding for a specific project under subsection (1) shall not exceed $100,000.00 for a single or multi-jurisdiction project. Funding provided pursuant to subsection (1) shall not be available for the purchase of fixed assets or to make renovations to existing structures.

"(5) The department shall evaluate single or multi-jurisdiction project proposals for both programmatic design and cost effectiveness consistent with subsection (1).

"(6) The department shall report to the senate and house appropriations subcommittees on corrections and the senate and house fiscal agencies the number of program funding requests received, the programs approved for funding and detailed information for each program funded including organization, program statement, proposed operating and capital outlay budgets, and performance objectives by April 1, 1989 and quarterly thereafter."

Section 101 of this act appropriates $1,000,000.00 for a minimum security jail work camp program. As was true with Secs. 302 and 403, supra, 1988 PA 324, Sec. 414, merely imposes conditions or restrictions on that appropriation. These provisions are, thus, germane to the object of the Act. Advisory Opinion re Constitutionality of 1972 PA 294, supra.

It is my opinion, therefore, that 1988 PA 324, Sec. 414, is constitutional.

Finally, you have requested that the following provisions of appropriations acts enacted in 1988 be considered in light of Const 1963, art 3, Sec. 2:

1988 Public Act Section

--------------- ---------------------------------------------

324 301(4), 419(6), 605

271 711(1)

288 904

289 701

299 301, 905, 1107(2) and (3)

300 305

302 1120(7)

303 211(3)

305 304(4), 315(4), 329(1), 332, 414(2), 421, 429

319 1701

323 841, 850

Except for 1988 PA 289, supra, each of these acts make appropriations for various departments and programs for the fiscal year ending September 30, 1989.

Several of the questioned provisions in this group require various departments to provide information to the Legislature prior to making certain expenditures and, in some cases, to obtain approval of contemplated expenditures from legislative committees or subcommittees or their respective chairpersons. Other provisions merely require prior legislative review or committee or subcommittee review of contemplated executive actions. The critical question which must be answered in each case is whether the Legislature has the power to impose these conditions on the executive branch, or whether such conditions violate the separation of powers doctrine.

Const 1963, art 3, Sec. 2, provides:

"The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."

This constitutional provision was considered in OAG, 1975-1976, No 4873, p 77, 79-81 (May 2, 1975), which addressed the general question of whether the Legislature could require informational reports from the then State Highway Commission. It was therein stated:

"[T]he legislature may give direction to the highway commission by statute and impose conditions in appropriation acts with reference to such appropriations, provided such conditions are not in conflict with other constitutional provisions.

"In Weinberg v The Regents of the University of Michigan, 97 Mich 246; 56 NW 605 (1893) such conditions were those labeled as ones being deemed expedient and wise. However, this statement was considerably modified in the case of State Board of Agriculture v Auditor General, 226 Mich 417; 197 NW 160 (1924) where the court said at page 425:

" 'Clearly, in saying that the legislature can attach to an appropriation any condition which it may deem expedient and wise, the court had in mind only such a condition as the legislature had power to make. It did not mean that a condition could be imposed that would be an invasion of the constitutional rights and powers of the governing board of the college. It did not mean to say that, in order to avail itself of the money appropriated, the State board of agriculture must turn over to the legislature management and control of the college, or of any of its activities. This logically leads us to a consideration of the character of the condition attached to the appropriation involved in the instant case. Is it a condition that the legislature had power to make? ...'

"....

"Obviously, the legislature is not exercising powers of the executive in mandating the executive branch of government to furnish informational reports to the legislature concerning those programs for which the legislature has appropriated funds. However, if it is proposed that the Joint Capital Outlay Committee impose conditions with respect to the moneys appropriated to the highway commission whereby the committee would administratively control the projects and programs for which the money is appropriated, the performance of a function by the legislature would be involved, which function must be examined under the provisions of Const 1963, art 3, Sec. 2, as to its validity.

"....

"The legislature may impose funding controls through appropriation legislation but it cannot assume administrative controls with respect to highway commission programs that provide for an exercise of executive powers of government by the legislature which would be in violation of the Const 1963, art 3, Sec. 2." Id at 79-81.

OAG, 1975-1976, No 4896, supra, considered the extent to which the Legislature could become involved in executive functions. Among other things, that opinion analyzed two sections of an appropriations bill which required review and approval by legislative committees of certain proposed expenditures, and providing to legislative committees information relating to certain intended actions.

OAG, 1975-1976, No 4896, supra, at 149, quoted the provision there in question:

"Section 8(6) of Enrolled House Bill 4439, the General Government Appropriations Act, states:

" 'Funds appropriated in this act shall not be used to cover contractual service contracts covering consultants' services or contractual personnel unless the director of the department certifies that moneys for these purposes are also included in the funds appropriated.

" 'All proposed consultant contracts exceeding $50,000.00 shall:

" '(a) be reviewed and approved by the appropriations committees, and

" '(b) be posted for public information prior to management science approval in the secretary of state, Lansing office.

" 'By March 1 of each year an itemized report on intended departmental reallocations or reclassifications and contractual service contracts shall be furnished by the director of each state department to the senate and house appropriations committee, with a copy to the senate and house fiscal agencies.' " Id at p 149.

In discussing this section, OAG, 1975-1976, No 4896, supra, at 149-151, stated:

"It is apparent that the legislature in Section 8(6) of Enrolled House Bill 4439 has attempted to regulate the use of appropriations and establish conditions for the letting of proposed consulting contracts.

"....

"[T]he legislature may not perform executive functions such as those alluded to in Section 8(6); namely, review of consulting contracts exceeding $50,000.00 by the appropriations committee and the itemization report on intended department reallocations and reclassifications and contractual service contracts being furnished by the director of each state department to the senate and house appropriations committees with a copy of the same being sent to the fiscal agencies of both branches of the legislature. If the legislature did not desire to appropriate funds for consulting contracts it did not have to do so. Once having done so, the legislature does not possess, retain or have access to any form of administration or monitoring thereof." Id at pp 149-151.

The opinion acknowledged the validity of the informational requirement that was found acceptable in OAG, 1975-1976, No 4873, supra, and then concluded:

"The executive branch of government is responsible for the implementation of appropriations acts, not the legislative branch of government. Therefore, in response to your question relative to Section 8(6) of Enrolled House Bill 4439, the General Appropriations Act, it is my opinion that said section is in violation of Const 1963, art 3, Sec. 2 and is unconstitutional." Id at p 151.

OAG, 1975-1976, No 4896, supra, then considered Enrolled House Bill 4439, Sec. 13, which provided, among other things, that the Director of the Department of Management and Budget submit to a legislative committee a detailed accounting of anticipated programs, positions and expenditures relating to data processing for the state, and that approval from a legislative committee be obtained prior to expenditure of appropriated funds. This opinion concluded:

"As I recounted in answer to the constitutionality of Section 8(6) of Enrolled House Bill 4439 above, the legislature may not engage in executive functions in violation of Const 1963, art 3, Sec. 2. The mandates of Section 13 are a direct invasion of the constitutional power of the executive branch of government to administer appropriations and, as such, I must conclude that Section 13 is unconstitutional." Id at p 152.

See also, Regents of the University of Michigan v Michigan, supra.

Thus, while the Legislature may require general informational reports, it cannot become involved in the executive decision-making process by requiring approval by the Legislature of anticipated executive actions, including expenditure of appropriated funds.

With that background, it is now appropriate to consider the specific provisions about which you have asked.

1988 PA 324 makes appropriations for the Department of Corrections for the fiscal year ending September 30, 1989. Sections 301(4), 419(6), and 605 of 1988 PA 324 provide:

Sec. 301. "(4) Except for an emergency, the department shall report to the senate and house appropriations subcommittees on corrections, the senate and house fiscal agencies, and to the department of management and budget the proposed allocations for the inmate housing fund for each facility authorized to receive funding at least 15 days before approved allocations are made." (Emphasis added.)

Sec. 419. "(6) The funds allocated under subsection (1) for electronic tether program equipment shall not be spent unless the department has considered various manufacturers for the highest quality equipment at the most cost effective rate."

Sec. 605. "The $10,792,000.00 appropriated in section 101 for intern and new employee training shall not be expended after October 1, 1988 for training correctional officer candidates unless all candidates for correctional officer positions are hired consistent with the special restrictions as developed by the director for the hiring of correctional officers."

Section 301(4) requires legislative notification of "proposed allocations ... before approved allocations are made." (Emphasis added.) If the Legislature's intent is to require both notification and approval before expenditures of appropriated funds can be made, 1988 PA 324, Sec. 301(4), is unconstitutional. If, on the other hand, the Legislature has included this provision for informational purposes only, it is valid. The latter construction, which upholds its constitutionality, is favored. Thomas Canning Co v Southern Pacific Co, 219 Mich 388, 400; 189 NW 210 (1922).

1988 PA 324, Sec. 301(4), may be construed to require only the furnishing of information to the legislative subcommittees of proposed allocations for the inmate housing fund before the department makes expenditures therefrom, and I so construe it.

It is my opinion, therefore, that 1988 PA 324, Sec. 301(4), as hereinabove construed, is constitutional.

Sections 419(6) and 605 contain conditions attached to the respective appropriations. Such conditions are permissible since they do not invade the constitutional rights and powers of a separate branch of state government. In making purchases of equipment, prudence would require effort to seek the highest quality equipment at the most cost effective price. Hiring personnel in accordance with policies determined by the Director of the Department of Corrections as approved by the Civil Service Commission does not constitute any invasion of executive authority.

It is my opinion, therefore, that 1988 PA 324, Secs. 419(6) and 605, are constitutional.

1988 PA 271 makes appropriations for the Department of Transportation for the fiscal year ending September 30, 1989. Section 711(1) of 1988 PA 271 provides:

"The discretionary accounts in section 101 shall be used for programs and projects as determined by the department. The department shall inform the house and senate appropriations committees of the manner in which the funds in these accounts will be expended not less than 30 days before expenditure."

This section requires only disclosure of expenditures in advance of their being made. No legislative approval is required, and the department retains its authority to spend the appropriations without legislative approval as it sees fit, subject only to conditions which may lawfully be imposed by the Legislature.

It is my opinion, therefore, that 1988 PA 271, Sec. 711(1), is constitutional.

1988 PA 288 makes appropriations for the Department of Agriculture for the fiscal year ending September 30, 1989. Section 904 of 1988 PA 288 provides:

"Included in section 101 is an amount not to exceed $750,000.00 for promotion of attendance at pari-mutuel horse racing. The state funds shall be matched before expenditure such that each $2.00 of state funds is matched by $1.00 of private industry funds. A race meeting licensee or an association of thoroughbred and harness racetracks or any horsemen's group may submit a plan and proposal to the racing commissioner for use of funds authorized to be expended for promotion of attendance at pari-mutuel horse racing. A plan shall be submitted by the commissioner before the funds may be expended. Each licensee or association of thoroughbred and harness racetracks or horsemen's group shall be eligible for promotional funds. The distribution shall not be made until approved by the chairpersons of the appropriations subcommittees on agriculture of the senate and house appropriations committees. All unexpended funds shall lapse to the state general fund." (Emphasis added.)

The penultimate sentence of Sec. 904, underscored above, requires the submission of a plan to legislative committees and approval by the chairpersons of the designated committees and, as such, impermissibly involves the Legislature in executive functions. OAG, 1975-1976, No 4896, supra, p 151.

It is my opinion, therefore, that the underscored sentence of 1988 PA 288, Sec. 904, is unconstitutional in that it impermissibly involves the Legislature in executive functions and, consequently, violates Const 1963, art 3, Sec. 2.

There is nothing in 1988 PA 288 to indicate an intent on the part of the Legislature to make the provisions of the Act nonseverable. For the reasons stated in answer to the question relating to 1988 PA 324, Sec. 404, supra, the underscored sentence of 1988 PA 288, Sec. 904, may be severed. The appropriations and the remaining provisions of 1988 PA 288, being independent and capable of being carried out without reference to the invalid portion of 1988 PA 288, Sec. 904, are valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

1988 PA 289 makes supplemental appropriations to certain departments for the fiscal year ending September 30, 1988. Section 701 of 1988 PA 289 provides:

"In addition to the amount appropriated to the department of management and budget in section 101 for Michigan justice training grants, the state budget director may recommend for appropriation the unreserved balance in the Michigan justice training fund created by Act No. 302 of the Public Acts of 1982, being sections 18.421 to 18.428 of the Michigan Compiled Laws. The amount recommended by the state budget director pursuant to this section is appropriated not less than 30 days after notifying the senate and house appropriations committees. If disapproved by either appropriations committee within that time, the amount recommended for appropriation by the state budget director shall not be effective."

This section impermissibly attempts to delegate to the state budget director and the Senate and House appropriations committees authority to appropriate funds. Const 1963, art 4, Sec. 31, and art 9, Sec. 17.

It is my opinion, therefore, the 1988 PA 289, Sec. 701, is unconstitutional in that it violates Const 1963, art 4, Sec. 31, and art 9, Sec. 17, because it impermissibly attempts to delegate to the state budget director and the senate and house appropriations committees authority to appropriate funds.

The appropriations and remaining provisions of 1988 PA 289 are independent and capable of being given effect without reference to Sec. 701. In the absence of any indication of legislative intent to make the provisions of 1988 PA 289 nonseverable, for the reasons stated in answer to the question relating to 1988 PA 324, Sec. 404, supra, the appropriations and remaining provisions of 1988 PA 289 are valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

1988 PA 289 makes appropriations for the Department of Public Health for the fiscal year ending September 30, 1989. Sections 301, 905, and 1107(2) and (3) of 1988 PA 299, provide:

Sec. 301. "Expenditures of federal or other restricted allotments from the amounts appropriated in section 101 for federal and other restricted assistance for health services shall not be made until after receipt of the recommendations of the department of management and budget and the approval of the public health subcommittees of the senate and house appropriations committees. If any request for approval is not acted upon within 60 days after the date of submission to the public health subcommittees of the senate and house appropriations committees, the request shall be considered approved." (Emphasis added.)

Sec. 905. "(1) By September 1, 1988, the department shall submit a program and spending plan for the amount appropriated in section 101 for work site risk reduction and health promotion grants to the members of the senate and house appropriations subcommittees on public health, senate and house fiscal agencies, and the department of management and budget. Except as otherwise provided in subsection (2), the plan shall not be implemented until the plan has been approved by the senate and house appropriations subcommittees on public health and the department of management and budget.

"(2) If the plan required under subsection (1) is not acted upon within 30 days after the date of receipt by the senate and house appropriations subcommittees on public health, the plan shall be considered approved." (Emphasis added.)

Sec. 1107. "... (2) The department shall submit a plan for allocation of the adolescent health care services to the senate and house appropriations subcommittees on public health, the senate and house fiscal agencies, and the department of management and budget. The plan shall include the name and description of each project to be funded and the funding level for each project. Except as otherwise provided in subsection (3), the plan shall not be implemented until the plan has been approved by the senate and house appropriations subcommittees on public health."

"(3) If the plan is not acted upon within 15 days after the date of receipt by the senate and house appropriations subcommittees on public health, the plan shall be considered approved." (Emphasis added.)

The underscored portions of each of these sections requires either affirmative approval by legislative committees of executive branch plans and programs and related expenditures, or approval resulting from the failure of the committees to act timely to disapprove the executive branch decision and, as such, impermissibly involve the Legislature in executive functions. OAG, 1975-1976, No 4896, supra, p 151. The underscored portions of each of these sections are, therefore, unconstitutional.

It is my opinion, therefore, that 1988 PA 299, Sec. 1107(3), and the underscored portions of Secs. 301, 905, and 1107(2), are unconstitutional in that they violate Const 1963, art 3, Sec. 2, because they impermissibly involve the Legislature in executive functions.

In 1988 PA 299, the Legislature has given no indication that the Act was to be nonseverable. The appropriations, the remaining provisions of Secs. 301, 905, and 1107(2), and other provisions of the Act are independent and capable of being given effect without reference to the severed portions. Under the reasoning stated in the answer to the question relating to 1988 PA 324, Sec. 404, supra, the appropriations, the remaining portions of Secs. 301, 905, and 1107(2), and the other provisions of 1988 PA 299 are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

1988 PA 300 makes appropriations for a capital outlay program for the fiscal year ending September 30, 1989. Section 305 of 1988 PA 300 provides:

"None of the $42,000,000.00 appropriated in Act No. 134 of the Public Acts of 1987 for the construction of the Muskegon regional prison shall be released until the department of corrections agrees to grant to Muskegon county commitments and agreements similar to those given in writing to Detroit, Coldwater, and other communities in which prisons have been placed in the 5 fiscal years before the fiscal year ending September 30, 1989, or communities in which prisons are in the process of being located."

This section attaches a condition to the appropriation for the construction of this prison. This is permissible because the condition does not invade the constitutional rights and powers of a separate branch of state government. See OAG, 1981-1982, No 5912, supra. Rather, it reflects a legislative decision to fund this project only if it is constructed on terms similar to those established for other recently built prisons.

It is my opinion, therefore, that 1988 PA 300, Sec. 305, is constitutional.

1988 PA 302 makes appropriations for the Department of Education for the fiscal year ending September 30, 1989. Section 1120(7) of 1988 PA 302 provides:

"After reviewing the grant applications received pursuant to this section and not later than May 1, 1989, the advisory committee shall submit a list of recommended grant recipients and amounts to the department for approval. The maximum level of any single grant approved by the advisory committee shall not exceed $70,000.00. The department shall then submit the recommended list of grant recipients and amounts to the senate and house appropriations subcommittees responsible for the department's budget for their approval before any grant funds are released." (Emphasis added.)

The Legislature, in enacting the underscored portion of Sec. 1120(7), has sought to require legislative approval of proposed expenditures and, as such, impermissibly involves the Legislature in executive functions. OAG, 1975-1976, No 4896, supra, p 151.

It is my opinion, therefore, that the phrase "for their approval" in 1988 PA 302, Sec. 1120(7), is unconstitutional in that it violates Const 1963, art 3, Sec. 2, because it impermissibly involves the Legislature in executive functions.

There is no indication in 1988 PA 302 that the Legislature intended its provisions to be nonseverable. The appropriations, the remaining portions of 1988 PA 302, Sec. 1120(7), and the remaining provisions of 1988 PA 302 are independent and may be given effect without reference to the severed portion. Under the reasoning stated in the answer to the question relating to 1988 PA 324, Sec. 404, supra, the appropriations, the remaining portions of Sec. 1120(7), and the remaining provisions of 1988 PA 302 may be given effect without the severed unconstitutional portion. They are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

1988 PA 303 makes appropriations for the Department of State Police for the fiscal year ending September 30, 1989. Section 211(3) of 1988 PA 303 provides:

"By November 15, 1988, the director of the department shall submit to the state police subcommittees of the house and senate appropriations committees for approval, the recommendation of the director for implementing the director's discretionary reduction, as provided in section 101."

This reduction, which appears in Sec. 101 under the heading "DEPARTMENTWIDE APPROPRIATIONS," is in the amount of ($2,648,900.00).

OAG, 1989-1990, No 6557, p 1 (January 12, 1989), concluded that a director's discretionary reduction item in an appropriations act violates Const 1963, art 3, Sec. 2, if it permits the director of a principal department of the executive branch of government to exercise the legislative power to reduce appropriations absent sufficient standards in the act for the director to make the reduction or reductions to conform to the intent of the Legislature. Other than Sec. 211(1), which prohibits the elimination of any classified employee positions from the department, 1988 PA 303 contains no standards or other indicia of legislative intent concerning the designated reductions.

It is my opinion, therefore, that the line item entitled "DEPARTMENTWIDE APPROPRIATIONS ... Director's discretionary reduction ... ($2,648,900)" and Sec. 211(3) of 1988 PA 303 are unconstitutional in that they violate Const 1963, art 3, Sec. 2.

There is no indication in 1988 PA 303 that the Legislature intended its provisions to be nonseverable. The appropriations, the remaining portions of Sec. 211, and the remaining provisions of 1988 PA 303 are independent and capable of being given effect without the severed portions. Under the reasoning stated in the answer to the question relating to 1988 PA 324, Sec. 404, supra, the appropriations, the remaining portions of Sec. 211, and the remaining provisions of 1988 PA 303, are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

You next ask about several sections of 1988 PA 305, which makes appropriations for the Department of Commerce, Department of Labor, and the Department of Licensing and Regulation for the fiscal year ending September 30, 1989. The sections are:

Sec. 304. "... (4) Before April 1, 1989, there shall be submitted [by the Department of Commerce] to the house and senate appropriations committees a list of the contemplated payments, the amount of the payments, the purposes of the payments, and the recipients. If action on the payments is not taken within 30 days by both appropriations committees, in the form of a joint letter signed by the chairpersons both appropriations committees, indicating approval or disapproval of payments, the payments recommended may be made." (Emphasis added.)

Sec. 315. "... (4) Before any amount appropriated in section 101 for the Michigan equity program may be expended for a grant to a city, village, or township for the purposes outlined in subsections (1), (2), and (3), the department of commerce shall execute a grant agreement with the city, village, or township. The grant agreement shall specify which of the criteria included in subsections (1), (2), and (3), with which it complies. The grant agreement shall include the projects funded by the city, village, or township and the amount of funds the city, village, or township will receive for those projects. A legislative oversight committee, comprised of the regulatory subcommittees of the house and senate appropriations committees, shall review the contracts prior to their execution. No contract shall be executed, nor dollars disbursed, until the legislative oversight committee has reviewed the contract. The department of commerce shall submit all contracts to the legislative oversight committee for review no later than January 1, 1989. Cities, villages, and townships which have received a grant shall submit to the department of commerce a copy of their annual audit, which shall include an audit of grant funds. A representative sampling of grant agreements from each population classification identified in subsection (2) shall be audited by the state auditor general. The audits shall be submitted to the legislative oversight committee for review."

Sec. 329. "(1) The appropriation in section 101 of Act No. 218 of the Public Acts of 1986 to the department of commerce, grants to cities, for the Michigan equity program includes $3,008,300.00 for a work project account that shall be used for resource recovery development projects. Matching grants or interest rate subsidies shall be made to cities, villages, and townships with a population of less than 200,000, to businesses, or to counties for resource recovery projects located in eligible cities, villages, and townships. At least $2,000,000.00 shall be allocated to cities, villages, and townships with a population of less than 50,000, to businesses, or counties for resource recovery projects located in such cities, villages, and townships. Program guidelines shall be given to the regulatory and natural resources subcommittees of the house and senate appropriations committees for review. The department of commerce and the department of natural resources shall recommend jointly which projects shall be funded. Prior to the disbursement of the grants or interest rate subsidies, the regulatory subcommittees of the house and senate appropriations committees shall review the project applications. The departments of commerce and natural resources shall provide a report by January 30 of each year to the regulatory and natural resources subcommittees of the house and senate appropriations committees detailing the status of the program. The report shall include a list of all the applicants for grants, loans, or subsidies under the resource recovery revolving loan fund and the resource recovery development fund; descriptions of each project for which an application was submitted; and a list of all the projects which were approved and disapproved and the reason for disapproval."

Sec. 332. "Of the $16,074,200.00 appropriated in section 101 for neighborhood initiatives/arson control and prevention, $3,000,000.00 shall be dedicated to local units of government for the purposes of arson control and prevention. These funds are to be distributed [by the Department of Commerce] on a competitive basis according to need as determined by, but not limited to, the following factors: Michigan state police incendiary statistics, dollar amount of property loss due to arson, percent of abandoned homes, percent of abandoned industrial and commercial buildings, and number of arsons in the last year. Projects shall include, but not be limited to: arson investigation, arson investigation training, and arson prevention programs. Prior to distribution, the plan for distribution of the funds shall be reviewed by the chairpersons of the regulatory subcommittees of the house and senate appropriations committees."

Sec. 414. "... (2) The department of labor, job training services, shall notify the job training program oversight committee before expending or encumbering for specific job training project grants any federal job training partnership act discretionary funds or general fund appropriations for job training."

Sec. 421. "Not later than October 1, 1988, the department of labor shall submit to the chairpersons and to each member of the regulatory subcommittees of the house and senate appropriations committees a plan for the distribution of the community services block grant funds appropriated in section 101. The distribution plan for community services block grant funds shall be approved by each of the regulatory subcommittees before the proposed distribution submitted by the department of labor shall take effect. If the funding distribution for the community services block grant is not approved by both of the regulatory subcommittees, the department of labor shall resubmit an allocation formula for approval by each of the regulatory subcommittees." (Emphasis added.)

Sec. 429. "The appropriation in section 101 for the department of labor, job training services, includes $100,000.00 for a contract for the second phase of a 3-phase study of Michigan employment and training programs. The chairpersons of the regulatory subcommittees of the house and senate appropriations committees shall approve the selection of the contractor. At the completion of this second phase, the contractor shall provide to the house and senate appropriations committees an outline for a strategic plan and recommendations for elimination of duplicate training services." (Emphasis added.)

In the portions of Secs. 304(4), 421, and 429 which are underscored above, the Legislature has impermissibly required approval of proposed expenditures or approval of a selection of the contractor by legislative committees or subcommittees.

Sections 315(4), 329(1), and 332 require submission for review by legislative committees or subcommittees of anticipated disbursement of funds.

The meaning of the term "review" was considered by the court in Bruno v Detroit Institute of Technology, 36 Mich App 61, 65; 193 NW2d 322 (1971), lv den 386 Mich 782 (1972), wherein the court stated:

"Some definitions of the word 'review' are: (1) to examine again; and (2) to go over or examine critically or deliberately. Webster's Seventh New Collegiate Dictionary (G. & C. Merriman Company, 1969), p 736."

The term "review" in Secs. 315(4), 329(1), and 332 means that the proposed expenditures would be examined or gone over by the committees or subcommittees, not that they would be subject to legislative approval. However, Secs. 304(4), 421, and the second sentence of Sec. 429, supra, reflect the Legislature's intent that executive actions pursuant to those sections would be subject to legislative approval.

Although it was stated in OAG, 1975-1976, No 4896, supra, at 150, that the Legislature may not perform executive functions such as review of consulting contracts, the provision of the appropriation act in question in that opinion provided that the appropriations committees shall review and approve the contracts. The Legislature's attempted reservation of the authority to approve these contracts prior to the expenditure of funds made it apparent that its review could have led to improper legislative involvement in executive functions in that the departments would have been faced with the threat of legislative disapproval of an entire contract if legislative concerns about any particular clause were not adequately addressed. Cf, Regents of the University of Michigan v Michigan, supra, which held that pre-expenditure reports could be required by the Legislature, provided that they were for informational purposes only and that the Legislature was not involved in approval of contemplated executive actions.

Section 414(2) requires notification of a legislative committee of anticipated disbursement of funds. This is a requirement that the committee be provided with information only, not that proposed expenditures are subject to legislative approval.

It is thus seen that the requirements of Secs. 315(4), 329(1), 332, and 414(2) may be construed as being informational only. So construed, these sections do not require legislative approval, and do not impermissibly involve the Legislature in executive functions. See State, ex rel Coll v Carruthers, 759 P2d 1380, 1385 (NM, 1988). Moreover, once the department furnishes the requested information to the legislative subcommittees or subcommittee or their chairpersons, it may take the contemplated action, including expenditure of funds, without waiting for any legislative action.

In view of the foregoing, it is my opinion that Secs. 315(4), 329(1), 332, and 414(2) of 1988 PA 305 are constitutional. It is my further opinion that the underscored portions of Secs. 304(4), 421, and 429 of said Act are unconstitutional in that they violate Const 1963, art 3, Sec. 2, because they impermissibly involve the Legislature in executive functions.

There is no indication in 1988 PA 305 that the Legislature intended its provisions to be nonseverable. The appropriations, the remaining portions of Secs. 304(4), 421 and 429, and the other provisions of 1988 PA 305 are independent and capable of being given effect without reference to the severed portions. Under the reasoning stated in the answer to the questions relating to 1988 PA 324, Sec. 404, supra, the appropriations, the remaining portions of Secs. 304(4), 421, and 429, and the other provisions of 1988 PA 305 are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

1988 PA 319 makes appropriations for the Department of Natural Resources for the fiscal year ending September 30, 1989. 1988 PA 319, Sec. 1701, provides:

"Before December 31, 1988, the director of the department shall report the department's employment savings plan of $3,492,800.00 state general fund/general purpose to the senate and house appropriations committees and the senate and house fiscal agencies. The employment savings plan shall indicate how the general fund savings will be realized, from which line item the savings will be realized, when the savings are to be effective, and any FTE positions affected. The employment savings plan shall not be implemented until approved by the senate and house of representatives subcommittees on natural resources."

1988 PA 319, Sec. 101, contains a line item "EMPLOYMENT SAVINGS Employment reduction ... $(3,492,800)."

The department employment savings plan referred to in this provision is virtually identical to a director's discretionary reduction item. It contains no standards and the analysis contained in OAG, 1989-1990, No 6557, supra, is, therefore, equally applicable here. It also calls for approval by legislative subcommittees before it may be implemented.

Since 1988 PA 319 contains no standards which would permit the director to make the reduction or reductions conform to the intent of the Legislature, and calls for approval by legislative subcommittees, it is my opinion that the line item entitled "EMPLOYMENT SAVINGS Employment reduction ... $(3,492,800)" and Sec. 1701 of 1988 PA 319 are unconstitutional in that they violate Const 1963, art 3, Sec. 2.

There is no indication in 1988 PA 319 that the Legislature intended its provisions to be nonseverable. The appropriations and remaining provisions of 1988 PA 319 are independent and capable of being given effect without reference to the unconstitutional severed portions. Under the reasoning stated in answer to the questions relating to 1988 PA 324, Sec. 404, supra, the appropriations and the remaining provisions of 1988 PA 319 are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

Finally, as concerns Const 1963, art 3, Sec. 2, you ask about the general government appropriations act, 1988 PA 323, Secs. 841 and 850, which provide:

Sec. 841. "In addition to the amount appropriated to the department of management and budget in section 101 for grants to veterans trust fund, board of trustees and county committees, the board of trustees may recommend to the state budget director appropriation of all or a portion of the unreserved balance in and earnings of the Michigan veterans trust fund to provide for the needs of Michigan veterans, their spouses and dependents. The amount so approved by the state budget director is appropriated not less than 30 days after notifying the senate and house appropriations committees. If disapproved by either appropriations committee within that time, the amount so approved by the state budget director shall not be effective."

Sec. 850. "In addition to the amount appropriated to the department of management and budget in section 101 for Michigan justice training grants, the state budget director may recommend for appropriation the unreserved balance in the Michigan justice training fund created by Act No. 302 of the Public Acts of 1982, being sections 18.421 to 18.428 of the Michigan Compiled Laws. The amount recommended by the state budget director pursuant to this section is appropriated not less than 30 days after notifying the senate and house appropriations committees. If disapproved by either appropriations committee within that time, the amount recommended for appropriation by the state budget director shall not be effective."

These sections impermissibly attempt to delegate to the state budget director and the Senate and House appropriations committees authority to appropriate funds contrary to Const 1963, art 4, Sec. 31, and art 9, Sec. 17.

It is my opinion, therefore, that 1988 PA 323, Secs. 841 and 850, are unconstitutional. (1)

There is no indication in 1988 PA 323 that the Legislature intended its provisions to be nonseverable. The appropriations and remaining provisions of 1988 PA 323 are independent and capable of being given effect without reference to the unconstitutional sections. Under the reasoning stated in answer to the question relating to 1988 PA 324, Sec. 404, supra, the appropriations and remaining provisions of 1988 PA 323 are, therefore, valid. See OAG, 1967-1968, No 4602, supra, and OAG, 1989-1990, No 6598, supra.

In summary, it is my opinion that the following provisions of the respective appropriations acts are constitutional:

1988 PA 289, Sec. 301

1988 PA 324, Secs. 301(4), 302, 403, 414, 419(6) and 605

1988 PA 271, Sec. 711(1)

1988 PA 300, Sec. 305

1988 PA 305, Secs. 315(4), 329(1), 332, and 414(2).

It is my further opinion that the following provisions of the respective appropriations acts are unconstitutional:

1988 PA 324, Sec. 404

1988 PA 288, Sec. 904 (underscored sentence only)

1988 PA 289, Sec. 701

1988 PA 289, Sec. 301 (underscored portion only), Sec. 905 (underscored portion only), Sec. 1107(2) (underscored portion only) and Sec. 1107(3)

1988 PA 302, Sec. 1120(7) (underscored portion only)

1988 PA 303, Secs. 211(3) and the line item entitled "DEPARTMENTWIDE APPROPRIATIONS ... Director's discretionary reduction"

1988 PA 305, Sec. 304(4) (underscored portion only), Sec. 421 (underscored portion only), and Sec. 429 (underscored portion only)

1988 PA 319, Sec. 1701 and the line item entitled "EMPLOYMENT SAVINGS ... Employment reduction"

1988 PA 323, Secs. 841 and 850.

Frank J. Kelley

Attorney General

(1 This answer to your question obviates the need for analysis of any other constitutional questions which may be presented by these sections)

 


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