STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6705

October 25, 1991

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2

SEPARATION OF POWERS:

Legislative approval of executive decisions

The provisions in section 16 and 16d of 1975 PA 319, which require, respectively, approval of the comprehensive plan and system for the management and use of motor driven off-road recreation vehicles on routes, trails, and areas by the Legislature and the standing committees of both houses dealing with natural resources matters, are in violation of Const 1963, art 3, Sec. 2.

The legislative approval provisions are severable and the remaining provisions of 1975 PA 319 may be given effect.

Honorable James Mick Middaugh

State Representative

The Capitol

Lansing, MI

You have requested my opinion on two questions which may be phrased as follows:

STATUTORY FRAMEWORK

1975 PA 319, MCL 257.1601 et seq; MSA 9.3300(1) et seq (the Act), provides for the registration and regulation of off-road recreational motor driven vehicles (ORVs).

As originally enacted, section 16 of the Act empowered the Department of Natural Resources to develop a comprehensive plan for the management of ORV use of areas, forest roads and trails within 18 months of effective date of the Act, but did not condition the plan upon prior approval of the Legislature or any legislative committees. As amended by 1991 PA 17, section 16(2) of the Act was rewritten to provide:

Section 16d(1) was added to the Act by 1991 PA 17, to provide:

It is also necessary to consider section 6a of the Act, as added by 1990 PA 71, which established the ORV trail improvement fund for the construction, maintenance, and improvement of ORV trails to be funded with monies collected from fees for registration of ORVs. However, no money in the fund could be expended prior to April 1, 1991. Section 6a(6) of the Act was amended by 1991 PA 17 to provide:

1991 PA 17 became effective May 7, 1991.

The development of the comprehensive plan by the Department of Natural Resources for the management of ORV use of areas, routes, and trails was required to be completed by October 1, 1991, subject to approval by the Commission of Natural Resources and approval, without amendment, by concurrent resolution approved by both legislative committees dealing with natural resources matters and both houses of the Legislature. Section 16 of the Act.

A comprehensive system for the use of ORVs on routes, trails, and areas was to be developed by the Department of Natural Resources and submitted to the Commission of Natural Resources for its approval within 10 days after the effective date of 1991 PA 17. The system was then to be submitted to the Legislature for its approval by means of a concurrent resolution adopted by the same two committees and by both houses of the Legislature. Section 16d of the Act.

No monies in the ORV trail improvement fund could be expended until the comprehensive system was approved by both the Commission of Natural Resources and the Legislature. Section 6a of the Act.

The decision to require prior approval by the Legislature of the ORV comprehensive plan, section 16 of the Act, and the ORV comprehensive system, section 16d of the Act, was a deliberate decision. A study of the legislative history of amendatory 1991 PA 17 confirms this. Introduced as HB 4010, the original bill proposed to amend section 16 of the Act to require adoption by the Department of Natural Resources of a comprehensive ORV plan. Although this bill would have required the Department of Natural Resources to submit subsequent revisions in the plan to the house and senate committees considering natural resources matters for their approval, no such legislative approval would have been required for the original plan. HB 4010 also proposed to add section 16d to the Act, to require development of a comprehensive system for the use of ORVs and submission to the Legislature for review and rejection by the Legislature by concurrent resolution adopted by the two committees and by the vote of both houses of the Legislature. While HB 4010 in its original form proposed to amend section 6a of the Act, it did not condition use of ORV trail improvement fund monies on legislative approval of the comprehensive system.

Provisions for legislative approval and the prohibition on spending monies in the ORV trail improvement fund, in the absence of legislative approval, were added to HB 4010 by the Legislature before it became 1991 PA 17. Based on the plain language of these provisions and their legislative history, it is clear that the Legislature intended to make the ORV plan and the ORV system contingent upon legislative approval.

CONSTITUTIONAL ANALYSIS

The people have divided the powers of government among the legislative, executive, and judicial branches in Const 1963, art 3, Sec. 2, and have commanded that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Id.

Sections 16 and 16d of the Act, respectively, impose duties upon the Department of Natural Resources to develop a comprehensive plan for the maintenance of areas, routes, and trails for use by ORVs and a comprehensive system for the use of ORVs on such routes, trails, and areas. These duties have been entrusted to the Department of Natural Resources, a department of state government in the executive branch. Formulation of such plan and such system is effected through the exercise of executive powers in implementing the relevant statutory provisions. The explicit reservation of the right of prior approval by both houses of the Legislature and both legislative committees represents an assumption of executive power by the Legislature and certain legislative committees to administratively supervise and control both the comprehensive plan and the comprehensive system in violation of Const 1963, art 3, Sec. 2. See Regents of the University of Michigan v Michigan, 395 Mich 52, 67-68; 235 NW2d 1 (1975); OAG, 1989-1990, No 6603, p 229, 238-240 (October 9, 1989); OAG, 1975-1976, No 4873, p 77 (May 2, 1975). This conclusion is equally applicable to those provisions in section 16 and section 16d of the Act that authorize the two legislative committees that consider natural resources matters to reject revisions to the ORV plan and the ORV system.

The Legislature may enact additional legislation concerning the ORV plan and the ORV system if it is not pleased with the plan or system approved by the Commission of Natural Resources. However, the legislation must be enacted by a bill having the force and effect of law, Const 1963, art 4, Sec. 22, rather than by a concurrent resolution that does not have the force and effect of law. Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935).

It is my opinion, therefore, that the provisions in sections 16 and 16d of 1975 PA 319, which require, respectively, approval of the comprehensive plan and system for the management and use of motor driven off-road recreation vehicles on routes, trails, and areas by the Legislature and the standing committees of both houses dealing with natural resources matters, are in violation of Const 1963, art 3, Sec. 2.

SEVERABILITY DISCUSSION

You have also asked whether, if these legislative approval provisions are unconstitutional, they are severable from the remainder of the Act. There is no indication that the Legislature intended the Act to be nonseverable. The remaining provisions are independent and capable of being given effect without reference to the unconstitutional provisions. Thus, the remaining provisions of the Act are valid and may be effectuated. MCL 8.5; MSA 2.216; OAG, 1989-1990, No 6603, supra at 244; OAG, 1967-1968, No 4602, p 186 (February 20, 1968).

It is my opinion, therefore, that the legislative approval provisions are severable and the remaining provisions of 1975 PA 319 may be given effect.

Frank J. Kelley

Attorney General

December 3, 1991

Honorable Dan L. DeGrow

State Senator

The Capitol

Lansing, MI

Honorable James E. O'Neill, Jr.

State Representative

The Capitol

Lansing, MI

Dear Senator DeGrow and Representative O'Neill:

Enrolled House Bill 4572, now 1991 PA 118 which amended the State School Aid Act of 1979, MCL 388.1601 et seq, MSA 15.1919(901) et seq, was signed by the Governor but returned to the House of Representatives in accordance with Const 1963, art 4, Sec. 33, because he vetoed several items pursuant to Const 1963, art 5, Sec. 19. In his accompanying veto message, the Governor listed several sections of the State School Aid Act of 1979 that he termed "inoperative" because they were not reenacted in 1991 PA 118.

You have asked if sections 24, 74, 75, 105a, 111 and 116 of the State School Aid Act of 1979, which were not amended by 1991 PA 118 remain operative and in effect to make appropriations for the 1991-1992 fiscal year.

As you know, most general appropriation acts are enacted annually by the Legislature but with regard to the school aid appropriation, the Legislature has chosen to amend the State School Aid Act of 1979 each year.

The State School Aid Act of 1979 is unquestionably an appropriations act and, indeed, expressly so states in its title. As a general appropriation act, it is subject to the constitutional requirements set forth in Const 1963, art 4, Sec. 31, and art 5, Sec. 18. Board of Education of Oakland Schools v. Superintendent of Public Instruction, 392 Mich 613, 621; 221 NW2d 345 (1974).

In Oakland, supra, the Court dealt with 1970 PA 100, which amended the title and various provisions of 1957 PA 312, ⁽¹⁾ the so-called school aid act, which amendment became law without objection of the Governor prior to the commencement of the 1970-1971 fiscal year. The Legislature again amended the school aid act when it passed 1971 PA 134, which contained appropriations for the 1971-1972 fiscal year, and which contained a new section 16a(5), which the Governor vetoed, and with respect to which the Legislature took no further action. The Court held that this action left section 16a(5), as originally enacted, in effect. This provision purported to appropriate funds "[b]eginning in 1971-1972." 392 Mich at 615. The Court found that the provision was not an appropriation.

392 Mich at 620.

At p 621 of Oakland, supra, the Court concluded:

In Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 501-502; 242 NW2d 3 (1976), the Supreme Court considered an appropriation to the state campaign fund that did take effect during the ensuing fiscal year but then continued for each year thereafter. The Court held that:

The Supreme Court has recently again reaffirmed its holding in Board of Education of Oakland Schools, supra, in Frederick v. Presque Isle County Circuit Judge, 439 Mich 1, 14; --- NW2d --- (1991). In Frederick, the issue was which government entity is responsible for paying attorneys assigned to represent indigent criminal defendants in appealing their convictions. The Supreme Court, after noting that "[o]ne legislature cannot limit the power of successor legislatures to appropriate funds", went on to hold that because the relevant statute "was enacted in 1980 and became effective on September 1, 1981, it cannot bind the Legislature with regard to 1988 appropriations. Therefore, the promise or intention expressed in MCL 600.9947; MSA 27A.9947, is not binding and cannot compel the state to assume the responsibility for paying the fees of assigned appellate attorneys."

In light of these cases, an appropriation act provision appropriating money for the ensuing fiscal year and subsequent years expresses the Legislature's intention to appropriate funds in those subsequent years. To be effective as an appropriation for any subsequent year, the provision must be reenacted for that subsequent year. This result is compelled because the Advisory Opinion case prohibits a continuing appropriation.

With respect to OAG, 1975-1976, No 4910, p 201 (December 2, 1975), which is referred to in your opinion request, it is to be noted that footnote 1 stated specifically that "This opinion does not address the validity of a continuing appropriation." Rather, OAG 1975-1976, No 4910, supra, dealt with the efficacy of the veto power of the Governor under Const 1963, art 5, Sec. 19. Citing Oakland, supra, and State v. Roselini, 55 Wash2d 554, 559; 348 P2d 971, 973 (1960), OAG, 1975-1976, No 4910, supra, held that where an act or part of an act repeals or amends an existing act, the veto of the act or part thereof prevents the intended repeal or amendment from taking effect; thus, the existing law is unaffected. That opinion did not consider the question of whether the existing law remained operative and in effect to make an appropriation for the ensuing fiscal year.

Your request inquires whether sections 24, 74, 75, 105a, 111 and 116 of the State School Aid Act of 1979 continue in effect. Not having been repealed, each section continues in effect. Board of Education of Oakland Schools, supra. While those sections remain in effect, they do not appropriate funds for the 1991-1992 fiscal year. Thus, they are and remain an authorization--an intention to appropriate--which the Legislature may choose to support by an appropriation during this fiscal year or in future fiscal years.

Sincerely,

Frank J. Kelley

Attorney General