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



CONSTITUTIONAL LAW:

ELECTIONS:

INITIATIVE AND REFERENDUM:

Initiative proposal to repeal law enacted by initiative




A law initially enacted by initiative of the people may subsequently be repealed by the initiative process.

An initiatory petition proposal to repeal a law in its entirety need not reprint the entirety of the law proposed to be repealed.


Opinion No. 6951

September 2, 1997


Honorable Alan L. Cropsey
State Representative
The Capitol
Lansing, Michigan


You have asked three related questions concerning an initiative petition to repeal a law originally enacted by the initiative process.

At the general election held November 5, 1996, the people approved an initiative proposal designated as Proposal E, the Michigan Gaming Control and Revenue Act, MCL 432.201 et seq; MSA 18.969(201) et seq (the Act). Subsequently, on July 17, 1997, the Governor signed into law 1997 PA 69, which amended several sections of the Act.

You first ask if a law originally enacted by initiative of the people may thereafter be repealed by the initiative process.

Initiative and referendum are governed by Const 1963, art 2, 9, and by the Michigan Election Law, Chapter 22, MCL 168.471 et seq; MSA 6.1471 et seq. Const 1963, art 2, 9, provides, in pertinent part, as follows:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. . . .

***

No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature.

(emphasis added).

Const 1963, art 2, 9, by its express terms, provides that the people may adopt and may repeal laws through the initiative process. The cardinal rule in interpretation of constitutional language is to give that language its common and ordinary meaning. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 340; 389 NW2d 430 (1986). The language set forth in Const 1963, art 2, 9, is clear and needs no interpretation.

There is nothing in Michigan's constitutional, statutory or case law which precludes the initiation of a law repealing a law originally enacted by the initiative process. Utilizing the initiative process to repeal a law enacted by initiative is consistent with the principle that constitutional provisions which reserve to the people a direct legislative voice ought to be liberally construed. Michigan Farm Bureau v Secretary of State, 379 Mich 387; 151 NW2d 797 (1967). See also, Newsome v Bd of State Canvassers, 69 Mich App 725, 729; 245 NW2d 374 (1976), lv den 397 Mich 833 (1976), holding that initiative provisions should be liberally construed to effectuate their purposes and to facilitate rather than hamper the exercise by the people of their reserved rights.

It is my opinion, therefore, in answer to your first question, that a law originally enacted by initiative of the people may subsequently be repealed by the initiative process.

Your second question asks whether an initiatory petition which proposes to repeal a law in its entirety must reprint the entirety of the law proposed to be repealed.

Const 1963, art 2, 9, reserves the power of the initiative to the people, but does not specify the content or any other details of the initiatory petition. Section 482 of the Michigan Election Law, which governs the content of initiatory petitions, provides in part as follows:

(3) The full text of the amendment so proposed shall follow and be printed in 8-point type. If the proposal would alter or abrogate an existing provision of the constitution, the petition shall so state and the provisions to be altered or abrogated shall be inserted, preceded by the words:

"Provisions of existing constitution altered or abrogated by the proposal if adopted."

Section 482 was passed under Const 1908, art 5, 1, which spelled out in detail the requirements for an initiatory petition. Const 1963, art 2, 9, reserves the power of the initiative to the people but does not specify the details of the petition. However, 1988 PA 114, MCL 168.544d; MSA 6.1544(4), specifies that an initiatory petition form "shall be substantially as provided in sections 482, 544a, or 544c, whichever is applicable."

As appears from section 482(3), a proposed amendment must be published in full text. Likewise, a proposed alteration or abrogation of a constitutional provision requires publication in the petition of the provisions to be altered or abrogated. However, nothing in sections 482 or 544d requires that a law proposed to be repealed must be reprinted in full text in the initiatory petition.

The Michigan Supreme Court has held that certain requirements for legislation adopted by the Legislature are applicable to initiated laws. In Leininger v Secretary of State, 316 Mich 644, 648; 26 NW2d 348 (1947), the court held that an initiative petition form which lacked a statutory title was defective and, therefore, could not be submitted to the electorate. In Automobile Club v Secretary of State (on Remand) 195 Mich App 613, 619; 491 NW2d 269, lv den 440 Mich 913 (1992), the court interpreted Leininger as follows:

The alternative and still valid reason put forth in Leininger was the limitation in both the Constitutions of 1908 and 1963 that no law may be proposed by initiative that the Legislature may not pass under the constitution, which by reference incorporates the title requirements of Const 1963, art 4, 24, formerly Const 1908, art 5, 21.

In Auto Club, the court stated that it expressed no opinion as to whether an initiatory petition must comply with Const 1963, art 4, 25, requiring full text publication of laws proposed to be altered or amended. Auto Club, supra, at 625. However, the court implied that the logic set forth in Leininger could be similarly applied to Const 1963, art 4, 25.

Const 1963, art 4, 25, provides as follows:

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 re-enacted and published at length.

The instant question is not whether a statute may be "revised, altered or amended by reference to its title only" but whether the entire statute may be repealed by initiative without republishing the entirety of the statute proposed for repealer.

The rationale of Const 1963, art 4, 25, was discussed in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 472-473; 208 NW2d 469 (1973), which adopted with approval Justice Cooley's opinion in People v Mahaney, 13 Mich 481, 497 (1865):

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation."

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"But an act complete in itself is not within the mischief designed to be remedied by this division, and cannot be held to be prohibited by it without violating the plain intent."

See also, People v Walter Johnson, 85 Mich App 654, 659; 272 NW2d 605 (1978).

Notably absent from the specific language of Const 1963, art 4, 25, is the word "repeal." In Ripley v Evans, 87 Mich 217, 232; 49 NW 504 (1891), the court upheld the constitutionality of a statute which provided "'all acts, or parts of acts, inconsistent which this act, or giving any other or different remedy, or form of remedy, are hereby repealed,'" applying Const 1850, art 4, 25, which is substantially similar to current Const 1963, art 4, 25. The court in Ripley noted:

It has been repeatedly held in this State that a statute having amendatory effect by implication to repeal inconsistent acts is not in conflict with section 25 of article 4 of the Constitution, because not reenacting and publishing at length the acts so altered and amended by implication.

(citations omitted).

When a law is proposed to be repealed in its entirety, it is not proposed to be revised, altered, or amended. On the contrary, it is to be abrogated. Therefore, the publication requirements imposed by Const 1963, art 4, 25, are not applicable to an initiatory petition proposing to repeal the entirety of a law.

It is my opinion, therefore, in answer to your second question, that an initiatory petition proposing to repeal a law in its entirety need not reprint the entirety of the law proposed to be repealed.

Your third question asks if an initiatory petition seeking a repealer must reprint the entirety of the law sought to be repealed, how are the petitions affected if the law is amended after the signatures are obtained but before the election. In light of my answer to your second question, it is not necessary to answer your third question.

FRANK J. KELLEY
Attorney General