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

MICHIGAN HISTORICAL COMMISSION:

CONST 1963, ART 5, 3:

PUBLIC OFFICERS AND EMPLOYEES:

Constitutionality of statute specifying term of office of Michigan Historical Commission

Const 1963, art 5, 3 requires that the terms of office of a board or commission created or enlarged after the effective date of the Constitution shall not exceed four years. 2001 PA 66 enlarged the Michigan Historical Commission. As a result, by the self-executing operation of Const 1963, art 5, 3, the terms of office of the members of the Michigan Historical Commission cannot exceed four years.

Const 1963, art 5, 3 invalidates only those provisions of 2001 PA 66 that specify a term of office in excess of four years and does not affect the remaining provisions of that act.

Opinion No. 7178

August 2, 2005

Mr. William M. Anderson, Director
Department of History, Arts and Libraries
702 West Kalamazoo Street
Lansing, Michigan 48909

You have asked three questions concerning the constitutionality of 2001 PA 66, which amended the Michigan Historical Commission Act, 1913 PA 271, MCL 399.1 et seq. You first ask whether 2001 PA 66 is unconstitutional in light of Const 1963, art 5,  3.

Const 1963, art 5, 3 provides, in pertinent part:

Terms of office of any board or commission created or enlarged after the effective date of this constitution shall not exceed four years except as otherwise authorized in this constitution. The terms of office of existing boards and commissions which are longer than four years shall not be further extended except as provided in this constitution.

The Michigan Historical Commission (MHC) advises the director of the Department of History, Arts, and Libraries, and also approves Michigan Historical Markers. Under MCL 399.4, the MHC is charged with collecting and preserving records, archives, paintings, and statuary that illustrate the history of Michigan and the old Northwest Territory. The MHC also publishes source material and historical studies concerning the history of our State.

Before 2001 PA 66, the structure of the MHC had gone largely unchanged since its inception in 1913 and consisted of "six members, with the addition of the governor, ex officio." Section 1 of 1913 PA 271, as amended by 1917 PA 192 and 1951 PA 250. The terms of office of the MHC members were established in section 2 of 1913 PA 271:

The Governor shall appoint members of said commission for the following terms: One for one year, one for two years, one for three years, one for four years, one for five years, and one for six years, and thereafter one member annually for a term of six years until their successors shall have been appointed and qualified.[1]

2001 PA 66 enlarged the MHC from seven members to ten members, amending section 1(1) of 1913 PA 271, MCL 399.1(1), to read:

There is hereby created within the department a commission to be known as the Michigan historical commission. The commission shall consist of the following members:

(a) One member appointed by the speaker of the house of representatives.

(b) One member appointed by the senate majority leader.

(c) Seven members appointed by the governor by and with the advice and consent of the senate. One of the members appointed under this subdivision shall be a representative of the historical society of Michigan. The governor shall make this appointment from a list of 3 persons nominated by the historical society of Michigan.

(d) The director of the department, serving as an ex officio member.

2001 PA 66 further amended MCL 399.2 to set the terms of office for the new commission members:

(1) . . . The additional member appointed by the governor as provided for in the 2001 amendatory act that amended this section shall serve for a term of 6 years and until his or her successor is appointed and qualified.

(2) A member of the commission appointed to the commission by the speaker of the house of representatives or the senate majority leader . . . shall hold office for a term of 2 years to coincide with the term of office of state representative. [MCL 399.2(1) and (2).]

Michigan courts "have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent" and will presume a statute is constitutional. Taylor v Gate Pharmaceuticals, 468 Mich 1, 6; 658 NW2d 127 (2003). Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and only when a statute is so clearly invalid as to leave no room for reasonable doubt that it violates some provision of the Constitution will a court refuse to sustain its validity. Phillips v Mirac, Inc, 470 Mich 415, 423; 685 NW2d 174 (2004). Whenever possible, an interpretation that does not create constitutional invalidity is preferred to one that does. Michigan State AFL-CIO v Employment Relations Comm, 453 Mich 362, 378; 551 NW2d 165 (1996). Similarly, courts avoid constructions of statutes that render the statute meaningless. People v Claypool, 470 Mich 715, 730; 684 NW2d 278 (2004). Finally, individual parts of an act are not to be examined out of context but should be interpreted with regard to the intent of the Legislature in enacting the whole:

[T]he entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent act as a whole. [Baraga County v State Tax Comm, 466 Mich 264, 274-275 n 6; 645 NW2d 13 (2002); citation omitted.]

While legislative enactments are to be interpreted in a manner consistent with the Constitution wherever possible, taking MCL 399.1 and MCL 399.2 together, there is no ambiguity in the enactment. 2001 PA 66 added three new members to the MHC. By enlarging the MHC, 2001 PA 66 triggered Const 1963, art 5, 3. No reasonable interpretation of this section of the act can avoid conflicting with the four-year limit imposed by art 5, 3.

The question then becomes what effect Const 1963, art 5, 3 has on 2001 PA 66. To answer this question, it must be determined whether Const 1963, art 5, 3 is self-executing or if it requires implementing legislation in order to place any limits on acts of the Legislature. The official record of the 1961 Constitutional Convention offers no guidance as to the framers' intent concerning this particular clause of the Constitution, as the debates on this section focused on other clauses. However, in Musselman v Governor, 448 Mich 503, 523 n 24; 533 NW2d 237 (1995), the Court, quoting Davis v Burke, 179 US 399, 403; 21 S Ct 210; 45 L Ed 249 (1900), described how to determine whether a constitutional provision is self-executing:

"A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." [Citation omitted.]

Moreover, the Court noted that "[a]s a general rule, no legislation is necessary to give effect to a prohibition." Id., at 523.

Const 1963, art 5, 3 sets out a clear rule that terms of office of boards and commissions shall not exceed four years unless otherwise authorized by the Constitution.2  Far from a mere statement of principle, it specifies the limit and the terms of office to which it applies. As a result, Const 1963, art 5, 3 lays out the rule with enough clarity and specificity to be given the force of law.

Further, by its language, Const 1963, art 5, 3 is plainly a prohibition:

Terms of office of any board or commission created or enlarged after the effective date of this constitution shall not exceed four years except as otherwise authorized in this constitution. [Emphasis added.]

Under the rule identified in Musselman, no legislation is necessary to give effect to Const 1963, art 5, 3. This provision of the Constitution is self-executing. It operates on its own to invalidate the terms of office of enlarged or newly created boards and commissions to the extent those terms exceed four years and requires no legislation to implement this limitation.3

It is my opinion, therefore, in answer to your first question, that Const 1963, art 5, 3 requires that the terms of office of a board or commission created or enlarged after the effective date of the Constitution shall not exceed four years. 2001 PA 66 enlarged the Michigan Historical Commission. As a result, by the self-executing operation of Const 1963, art 5, 3, the terms of office of the members of the Michigan Historical Commission cannot exceed four years.

You next ask whether, in light of Const 1963, art 5, 3 rendering parts of 2001 PA 66 ineffective, the remaining provisions of 2001 PA 66 are also rendered ineffective. Section 1 of 2001 PA 66 changes the ex officio member. MCL 399.1. This does not implicate Const 1963, art 5, 3. Section 2(2) sets the terms of office for the two legislative appointees. MCL 399.2(2). These terms are within the four-year limitation set by Const 1963, art 5, 3 and are likewise inoffensive to the Constitution. Sections 4a, 6, 7, and 7a of 2001 PA 66 concern record retention, publication of historical materials, and the administration of a store. MCL 399.4a, MCL 399.6, MCL 399.7, MCL 399.7a. These sections have no bearing on the terms of office for the MHC, and so Const 1963, art 5,  3 has no bearing on their validity.

It is my opinion, therefore, in answer to your second question, that Const 1963, art 5, 3 invalidates only those provisions of 2001 PA 66 that specify a term of office in excess of four years and does not affect the remaining provisions of that act.

Finally, you ask what effect 2001 PA 66 has on the terms of office of the members of the MHC. This question has been answered in response to your first question. As stated above, because the MHC has been enlarged, Const 1963, art 5, 3 limits the terms of office of those serving on the MHC on and after the effective date of 2001 PA 66 to no longer than four years. This provision is self-executing and so the four-year limit established by Const 1963, art 5, 3 operates by its own force to set the terms of office of the gubernatorial appointees.4  While the Legislature may decide at some point to revisit this issue, until that time the terms of office of the gubernatorial appointees are limited by the Constitution to no more than four years.

MIKE COX
Attorney General

1Although the term of the commission exceeded four years, the MHC was in existence with a six-year term at the time the Michigan Constitution of 1963 became effective, and so under art 5, 3, it was allowed to keep its six-year term provided it was not enlarged.

2
For example, the Constitution authorizes eight-year terms for the State Board of Education and for the boards of control of the state universities and community colleges.  Const 1963, art 8, 3, 5, 6, and 7.

3The Legislature may, consistent with Const 1963, art 5, 3, establish terms of office that are less than the four years allowed by the Constitution, but it is not permitted to exceed the four-year limitation unless otherwise authorized by the Constitution.

4The two-year terms of office of the legislative appointees are not affected by art 5, 3.