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:

CORRECTIONS, DEPARTMENT OF:

Validity of section 1117 of 1997 PA 88 under Const 1963, art 4,  25



Section 1117 of 1997 PA 88, the Department of Corrections 1997-1998 fiscal year appropriations act, violates Const 1963, art 4,  25, which prohibits the Legislature from amending an act unless the act is reenacted.


Opinion No. 6968

January 27, 1998


Kenneth L. McGinnis, Director
Michigan Department of Corrections
Grandview Plaza
P.O. Box 30003
Lansing, Michigan 48909


You have asked whether section 1117 of 1997 PA 88, the Department of Corrections 1997-1998 fiscal year appropriations act, violates Const 1963, art 4,  25, which prohibits the Legislature from amending an act unless the act is reenacted.

1997 PA 88 is the Department of Corrections appropriations act for the fiscal year ending September 30, 1998. The appropriations for that department are contained in section 101. Section 1117 provides as follows:

As a condition on the expenditure of funds appropriated in section 101, the department shall notify the victims of a prisoner's crime each time the prisoner is transferred from a higher security level to security level II or lower or is transferred from security level II to level I.

(emphasis added).

The Crime Victim's Rights Act, 1985 PA 87, as amended by 1988 PA 22, MCL 780.751 et seq; MSA 28.1287(751) et seq (CVRA), establishes specific procedures for protecting the rights of crime victims. The title of the CVRA establishes its scope:

AN ACT to establish the rights of victims of crime and juvenile offenses; to provide for certain procedures; to establish certain immunities and duties; to limit convicted criminals from deriving profit under certain circumstances; to prohibit certain conduct of employers or employers' agents toward victims; and to provide for penalties and remedies.

The object of a law is expressed in its title which indicates the purpose of the legislation, Vernor v Secretary of State, 179 Mich 157, 163; 146 NW 338 (1914).

Under the CVRA, following an accused's arraignment, the prosecutor must give notice to the crime victim of his or her rights and of procedures to be followed. "If requested by the victim," the prosecutor must give the victim notice of any scheduled court proceedings. Section 6(2). "Upon request of the victim," the prosecutor must confer with the victim prior to jury selection and prior to trial. Section 10. Following the accused's conviction and if requested by the victim, the victim may make an impact statement for use in the presentence investigation and may make an impact statement at the accused's sentencing. Section 13.

Following an accused's sentence to imprisonment, and "[u]pon the written request of the victim," section 19(b) requires the sheriff or the Department of Corrections to provide the victim with notification of the prisoner's release, transfer, sentence reduction, escape, parole or pardon, and:

(b) Notice of the transfer or pending transfer of the prisoner to a minimum security facility and the address of the facility.

Under the CVRA, a crime victim's right to receive notification of various aspects of an accused's trial, sentencing, imprisonment and security level is not self-executing. Rather, a victim's right to such notification must first be triggered by an express request from the victim. The requirement that such notice be conditioned upon a specific request from the victim was a deliberate decision by the Legislature: "[i]n this way, those who wish to follow up could be involved, while those who wanted to forget would not be continually reminded of the crime." House Legislative Analysis, HB 4009, July 17, 1985.

Section 1117 of the Department of Corrections appropriations act mandates notice to crime victims each time a prisoner's security level is changed. This mandatory notice to victims, however, is not conditioned upon any request of the victim. The notice must be given to victims regardless of whether they have requested notice, thus, requiring that all victims be "reminded of the crime" even though some may have expressed a desire to forget the crime by not submitting a written request pursuant to section 13 of the CVRA. House Legislative Analysis, HB 4009, supra.

Const 1963, art 4,  25, prohibits the Legislature from amending an act unless it is reenacted:

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.

(emphasis added).

This provision was discussed in OAG, 1991-1992, No 6745, p 209, 211 (December 22, 1992).

In Alan v Wayne County, 388 Mich 210, 281; 200 NW2d 628 (1972), the Supreme Court adopted a succinct formulation of that constitutional requirement, citing an earlier case:

Mok stands for the rule that you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B under Const 1963, art 4,  25.1

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We adopt the rule of Mok . . . .


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If a bill under consideration is intended whether directly or indirectly to revise, alter, or amend the operation of previous statutes, then the constitution, unless and until appropriately amended, requires that the Legislature do in fact what it intends to do by operation. 388 Mich at 285.

See, OAG, 1975-1976, No 4896, pp 132, 138-148 (September 9, 1975), for a thorough discussion and application of Const 1963, art 4,  25.

(Emphasis in original, footnote omitted.)

Const 1963, art 4,  25, was also discussed in OAG, 1985-1986, No 6325, p 177, 179 (December 11, 1985), which cited OAG, 1981-1982, No 5951, p 304 (August 10, 1981).

"This provision was before the Michigan Supreme Court in Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), and was discussed in OAG, 1975-1976, No 4896, p 132 (September 9, 1975). It requires the Legislature to reenact and republish any act which is amended by the Legislature in another act in a manner which 'dispenses with' or 'changes' provisions of the act amended."

The CVRA, at section 19, provides for notice of transfer of prisoners only to those crime victims requesting such notice. Section 1117 of 1997 PA 88, however, mandates notice of transfer of prisoners to all victims, including those who make no request for such information and, presumably, to those victims who expressly request that no notices be given to them. This is a fundamental change in the CVRA and, therefore, may only be accomplished by reenacting and republishing that statute. Section 1117 of 1997 PA 88, which amends the CVRA, fails to comply with Const 1963, art 4, 25.

It is my opinion, therefore, that section 1117 of 1997 PA 88, the Department of Corrections 1997-1998 fiscal year appropriations act, violates Const 1963, art 4,  25, which prohibits the Legislature from amending an act unless the act is reenacted.

MCL 8.5; MSA 2.216, a rule of statutory construction, provides that a statute is severable unless inconsistent with a manifest legislative intent that it not be severable. Here, there is no language in 1997 PA 88 indicating a legislative intent that the remaining valid portions of the act not be implemented. The other provisions of 1997 PA 88 are capable of being carried out independently of the section at issue. Thus, section 1117 of 1997 PA 88 is severable from the rest of that act. See, OAG, 1989-1990, No 6598, p 208, 211 (August 30, 1989).



FRANK J. KELLEY
Attorney General

1 Mok v Detroit Building & Savings Ass'n, 30 Mich 511 (1875).