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

MIKE COX, ATTORNEY GENERAL

EXECUTIVE ORDERS:

CONSTITUTIONAL LAW:

LEGISLATURE:

CONST 1963, ART 5, 2:

Legislature's time for disapproving executive reorganization orders

Where fewer than 60 calendar days remain in the regular session of a Legislature sitting in an even-numbered year upon submission of an executive reorganization order of the Governor, the requirement of Const 1963, art 5, 2 that the Legislature "shall have 60 calendar days of a regular session" to disapprove the order cannot be satisfied. Assuming the Legislature does not adopt a resolution disapproving an executive order submitted under these circumstances, the order may only take effect upon the expiration of 60 calendar days commencing in the next regular session of the Legislature.

Opinion No. 7166

December 28, 2004

Honorable Ken Sikkema
State Senator
The Capitol
Lansing, MI 48909

You ask a question regarding the Legislature's time for disapproving executive reorganization orders submitted by the Governor under Const 1963, art 5, 2.

You advise that, on November 12, 2004, the Governor submitted to the 2004 regular session of the Legislature Executive Order 2004-35 (EO 2004-35), bearing an effective date of  January 30, 2005.1  The Legislature is scheduled to adjourn sine die (without day) on December 29, 2004, allowing a period of only 47 calendar days in the 2004 regular session of the Legislature to consider this order. Your letter indicates that an additional period of 18 calendar days could be available for consideration of EO 2004-35 (from January 12, 2005, the constitutionally required date for the convening of the 2005 session of the Legislature, through the order's effective date of January 30, 2005) if consideration of EO 2004-35 may be carried over to the 2005 regular session.

Const 1963, art 5, 2, provides that the Legislature "shall have 60 calendar days of a regular session" to disapprove an executive reorganization order submitted by the Governor. You ask whether the 60-day requirement must be satisfied within a single regular session or whether, where fewer than 60 calendar days remain in the regular session to which the order is submitted, the requisite days may be counted by extending the disapproval period into the next regular session.

Analysis of your question begins with the language of Const 1963, art 5, 2, which states in relevant part:

Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor. [Emphasis added.]

The primary rule for interpreting Michigan's constitution is to construe the provision in "'the sense most obvious to the common understanding,'" the one that "'reasonable minds, the great mass of people themselves, would give it.'" Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), quoting Cooley's Const Lim 81 (emphasis deleted from original). If the language of the provision is plain, it is that plain meaning that courts give to it. Phillips v Mirac, 470 Mich 415, 422; 685 NW2d 174 (2004); Michigan Coalition of State Employee Unions v Michigan Civil Service Comm, 465 Mich 212, 222; 634 NW2d 692 (2001); Bond v Ann Arbor School Dist, 383 Mich 693, 699; 178 NW2d 484 (1970). Consideration may also be given to the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished. Bolt v Lansing, 459 Mich 152, 160; 587 NW2d 264 (1998). One of the most instructive tools for discerning the circumstances surrounding the adoption of a constitutional provision is the floor debates in the Official Record of the Constitutional Convention to the extent they reveal a "'recurring thread of explanation.'" House Speaker v Governor, 443 Mich 560, 581; 506 NW2d 190 (1993) (citation omitted). Though not controlling, the "Address to the People" is also relevant in interpreting the constitution. People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983).

Research has disclosed no court case or opinion of the Attorney General construing the precise constitutional language at issue in your question. The text of art 5, 2, however, plainly provides that the Legislature "shall"2  have one of two alternative periods of time within which to disapprove an executive order: 1) 60 calendar days of a regular session; or 2) a "full" regular session if the regular session is one whose duration is shorter than 60 calendar days.

The constitution itself provides the meaning of the term "regular session" at Const 1963, art 4, 13:

The legislature shall meet at the seat of government on the second Wednesday in January of each year at twelve o'clock noon. Each regular session shall adjourn without day, on a day determined by concurrent resolution, at twelve o'clock noon. Any business, bill or joint resolution pending at the final adjournment of a regular session held in an odd numbered year shall carry over with the same status to the next regular session. [See also Mason's Manual of Legislative Procedure, 203, p 163 (2000 edition) (houses of state legislatures "convene at the date fixed by the constitution and continue in session until adjournment sine die").]

According to this section, a "regular session" of the Legislature convenes at twelve o'clock noon on the second Wednesday in January of each year and continues until twelve o'clock noon of the day fixed by concurrent resolution for sine die or final adjournment.

The term "calendar day" as used elsewhere in the 1963 Constitution has also been defined. Addressing a question involving Const 1963, art 11, 5, and employing the "common understanding" rule of constitutional construction, OAG, 1981-1982, No 6048, p 595 (March 18, 1982), concluded that the term means "the time from midnight to midnight" or "the space of time between two consecutive or successive midnights." Id., at pp 595-596.

The remaining language of the provision at issue, "or a full regular session if of shorter duration," represents an alternative object of the verb "have"; in other words, the Legislature shall have either 60 calendar days of a regular session to disapprove an executive reorganization order or it shall have a "full" regular session to disapprove an executive reorganization order if that session is of shorter duration than 60 calendar days. Again, while research has uncovered no court case or opinion of the Attorney General examining this language, the words used are clear and unambiguous and must be interpreted according to their plain meaning. While in the years since adoption of the 1963 Constitution it does not appear that any regular session has been of shorter duration than 60 calendar days, nothing in the language of Const 1963, art 4, 13 quoted above precludes this result.3  Indeed, information provided to this office documenting the session days of previous legislatures indicates that the regular sessions of the 1948, 1946, 1944, 1942, 1934, and 1932 Legislatures, among others, consisted of fewer than 60 days. See also Michigan Manual 2003-2004, p 292. This experience presumably prompted the framers to address this possible contingency with respect to executive reorganization.4

In that your request does not involve a regular session of fewer than 60 calendar days, the question becomes whether the 60 calendar days that must be afforded the Legislature to consider EO 2004-35 may be counted by continuing the constitutional disapproval period into the 2005 session of the Legislature. Although not dispositive, art 5, 2 uses the singular "a regular session," suggesting that the 60 calendar days must be available to the Legislature within a single regular session. Nor does any other language of art 5, 2 appear to authorize or contemplate the carryover of executive orders between legislative sessions.5

While the framers did not discuss the issue presented in your letter, the convention thoroughly debated the nature and extent of the power granted to the Governor in art 5, 2, particularly in the context of what restraints should be placed on the Governor's exercise of the power. Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich 728, 747; 330 NW2d 346 (1982). See also House Speaker v Governor, 443 Mich 560, 581-586; 506 NW2d 190 (1993). In connection with a proposed amendment that would have allowed an executive reorganization plan to be disapproved by a majority of either house, instead of both, one delegate commented that the traditional system of giving the Legislature the lawmaking function regarding executive reorganization and the Governor a veto was being turned upside down. Soap & Detergent Ass'n, 415 Mich at p 747, n 10. In construing art 5, 2, the Court in Soap & Detergent cited the "vigorously debated checks deemed necessary to restrain the broad grant of power," and emphasized the importance of the legislative veto: "Recognition of the broad powers of reorganization granted is found in the provisions for legislative veto of the Governor's reorganization executive orders." Id. Thus, in ascertaining whether the requisite disapproval period has been achieved, a construction should be favored that gives full effect to the Legislature's veto power.

In addition, the provisions of Const 1963, art 4, 13 must be considered. As stated above, the pertinent part of this section provides that "[a]ny business, bill or joint resolution pending at the final adjournment of a regular session held in an odd numbered year shall carry over with the same status to the next regular session." (Emphasis added.) By its terms, this section does not authorize the carry-over of any business pending in an even-numbered year and, accordingly, does not authorize carry-over of the disapproval period for executive reorganization orders submitted near the end of an even-numbered year. See OAG, 1981-1982, No 6114, pp 779-780 (December 22, 1982) ("Bills pending upon a final adjournment in an even-numbered year do not . . . carry over to the next regular legislative session").

It is my opinion, therefore, that, where fewer than 60 calendar days remain in the regular session of a Legislature sitting in an even-numbered year upon submission of an executive reorganization order of the Governor, the requirement of Const 1963, art 5, 2 that the Legislature "shall have 60 calendar days of a regular session" to disapprove the order cannot be satisfied. Assuming the Legislature does not adopt a resolution disapproving an executive order submitted under these circumstances, the order may only take effect upon the expiration of 60 calendar days commencing in the next regular session of the Legislature.

MIKE COX
Attorney General

1EO 2004-35 seeks to make a change in the organization of the executive branch by renaming the Family Independence Agency as the Department of Human Services.  Pursuant to standard procedure, a copy of your request was provided to the Governor's office.  Subsequently, on December 9, 2004, the Governor issued Executive Order 2004-37, which rescinded Executive Order 2004-35 in its entirety.  On that same date, the Governor issued Executive Order 2004-38, which is identical in substance to EO 2004-35, except that it bears an effective date of March 15, 2005.  It is recognized that Executive Order 2004-38 now affords the 2005 Legislature a full 60-day disapproval period for considering this new order.  This opinion nevertheless provides the requested guidance to address a question of first impression that may recur.

2
The courts have long held that the popular and common understanding of the word "shall" denotes that which is mandatory.  Browder v Int'l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982), citing Smith v School Dist No 6, Fractional, Amber Twp, 241 Mich 366, 369; 217 NW 15 (1928).

3This is also true of the Legislature's current rules of procedure.  Joint Rule 26 governs the Final Adjournment of Regular Sessions and provides:  "In the regular session in each year, this rule for adjournment shall govern.  The Majority Floor Leader of the Senate and/or the Majority Floor Leader of the House of Representatives shall introduce a concurrent resolution providing for an adjournment schedule for the Legislature for that regular session."

4Art 5, 2 originated as Proposal 71 of the Committee on the Executive Branch.  As first offered, the sentence now at issue read:  "The Legislature shall have 60 days of a regular session, or a full session if of shorter duration, to disapprove these executive orders."  1 Official Record, Constitutional Convention 1961, p 1766, column 2.  While there was considerable debate on other aspects of art 5, 2, a search of the Official Record has uncovered no proposed amendments or discussion addressing the language at issue in your question.  It was twice changed, however, after referral to the Committee on Style and Drafting.  On third reading, the following changes were incorporated as indicated by capitalized additions and bracketed deletions:  "THEREAFTER, the legislature shall have 60 CALENDAR days of a regular session, or a full session if of shorter duration, to disapprove [these] EACH executive order[s]."  2 Official Record, Constitutional Convention 1961, p 3057, column 1, lines 27-30.  The Committee on Style and Drafting reported the final version with the word "regular" inserted after the word "full."  Id., at p 3292, column 1, and the delegates adopted this version.  

5The Address to the People concerning the relevant language of art 5, 2 does not address this question.  It only states that the Governor's proposed changes in the executive branch "become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature."  2 Official Record, Constitutional Convention 1961, p 3379.  Contrast the Address to the People explaining the provisions of Const 1963, art 5, 6 relating to the Senate's advice and consent power.  2 Official Record, Constitutional Convention 1961, p 3379 (stating "[i]f fewer than 60 session days remain for consideration after submission of an appointment, the time available for possible disapproval will be extended into the next regular or special session for the balance of the specified period.").  The record of the constitutional convention similarly fails to specifically address this question.