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

CONST 1963, ART 4, 26:

LAWS:

LEGISLATURE:

Calculation of the five-day period under Const 1963, art 4, 26

In computing the five-day period under Const 1963, art 4, 26 during which a bill must be in the possession of each house of the Legislature before it may become a law at any regular session, Sundays and holidays are counted.

When the Legislature is convened in a regular session, if a bill passed by one house of the Legislature is presented to the other house on a Tuesday, the bill is not eligible for final passage until the following Sunday.

Opinion No. 7206

September 21, 2007

Honorable Jennifer M. Granholm
Governor
The Capitol
Lansing, MI

On September 18, 2007, you asked two questions regarding the calculation of the five-day period during which a bill must be in the possession of each house of the Legislature before it may become law under Const 1963, art 4, 26. Specifically, your questions are whether Sundays and holidays are counted in computing the five-day period and whether, if a bill passed by one house of the Legislature is presented to the other house on a Tuesday, the bill is eligible for final passage on the following Saturday or Sunday.

You ask for expedited consideration of your question due to the need for guidance concerning pending legislation relating to the enactment of appropriations for the fiscal year beginning October 1, 2007. This response has accordingly been prepared on shortened review time to accommodate that request.

As with all questions calling for interpretation of the Michigan Constitution, analysis begins with the language of the provision under review to ascertain the common understanding of the people who adopted it. Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 375; 663 NW2d 436 (2003). The words used in the provision must be given their ordinary meanings. Lapeer County Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003). If the language of a provision is plain, it is that plain meaning that courts give to it. Phillips v Mirac Inc, 470 Mich 415, 422; 685 NW2d 174 (2004). In other words, the meaning that should be applied to the language is the one that the words would naturally convey to the popular mind. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 340; 389 NW2d 430 (1986). Consideration may also be given to the purpose sought to be accomplished by the provision. Bolt v Lansing, 459 Mich 152, 160; 587 NW2d 264 (1998).

Const 1963, art 4, 26 states in its entirety:

No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. On the final passage of bills, the votes and names of the members voting thereon shall be entered in the journal. [Emphasis added.]

Research has not discovered any court cases directly addressing either of your questions. In Anderson v Oakland County Clerk, 419 Mich 313; 353 NW2d 448 (1984), however, the Michigan Supreme Court explained that the history and purpose of the five-day rule in art 4, 26 is closely related to the "change of purpose provision" found in Const 1963, art 4, 24, which mandates that "[n]o bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title." The Court noted that these are not recent provisions and that a "long history underscores an intent through these requirements to preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration irrespective of legislative merit." 419 Mich at 329.

Tracing the history behind art 4, 26, the Court pointed out that the five-day rule and the change of purpose provision were contained in the same article and section of the 1908 Constitution, Const 1908, art 5, 22, and that the function of the change of purpose provision, both in the 1908 Constitution and as modified in the 1963 Constitution, is "to fulfill the command of the five-day rule." Id., at 330. In so concluding, the Court drew upon the explanatory remarks of the framers of the 1908 Constitution:

This function was clearly expressed by the framers of the constitution in connection with Const 1908, art 5, 22:

"This is a new section. It was inserted to prevent hasty and careless legislative action, also, to deal effectively with so-called snap legislation. The provision that no bill shall be passed until it has been printed and in the possession of each house for five days means much greater publicity in legislative proceedings. Time is thus provided whereby the people may become acquainted with proposed legislation and to petition, or remonstrate, before a bill is passed. It is believed that this provision will measurably improve the tone of legislative action. * * * The provision that no bill shall be altered on its passage so as to change its original purpose is included so that by no possibility can the publicity secured by the five day rule be nullified or evaded". 2 Official Record, Constitutional Convention 1907, p 1422. (Emphasis in original deleted.) [419 Mich 330, n 14.]

The framers of the 1963 Constitution expressed a similar opinion that the change of purpose provision along with the five-day rule was "a limitation which should be retained" because "[a]ction taken in haste is likely to prove itself not in the interests of the people." 419 Mich at 335 n 6, quoting 2 Official Record, Constitutional Convention 1961, pp 2334-2335.

In addition, a number of Attorney General opinions provide assistance in analyzing your questions. With respect to your first question asking whether Sundays and holidays are included within the five-day period, OAG, 1963-1964, No 4329, p 494, 498-499 (November 3, 1964), is instructive. In this opinion, the Attorney General was asked the meaning of the words "session day" as they appear in Const 1963, art 5, 6, which defines appointment by and with the advice and consent of the Senate to mean appointment subject to disapproval by majority vote taken "within 60 session days after the date of such appointment." The opinion determined that a "session day" includes every day the Legislature is in session: from the day it convenes in regular session1 to the day it adjourns sine die (without day) and every day in between, including all Sundays and holidays. In reaching this conclusion, the Attorney General relied on two opinions of the Michigan Supreme Court in which Sundays were held to be included within the days of a legislative session for purposes of the questions under review. See OAG No 4329 at p 498, citing Smith v Auditor General, 165 Mich 140; 130 NW 557 (1911) and Davock v Moore, 105 Mich 120; 63 NW 424 (1895).

Also relevant is 2 OAG, 1958, No 3252, p 99 (March 27, 1958), which examined the question of how to compute the three-day maximum period of adjournment allowed in one house of the Legislature without the consent of the other house in 1908 Const, art 5, 18. The opinion followed what it described as the general rule regarding the computation of periods of time, under which the day of presentment or other triggering event is excluded and the last day in the period is included. Addressing whether Sundays should be disregarded in making the applicable computation, the opinion explained that Sundays generally should be counted:

[T]he general rule was established in Michigan at an early date that in the absence of express provision to that effect in the statute or rule prescribing such time limitation, Sundays would be counted and the fact that the last day of such period fell on Sunday would not have the effect of extending the period for an additional day. Such rule is still followed in Michigan. [OAG No 3252 at p 100; footnotes and citations omitted.]

Similarly, in OAG, 1945-1946, No 0-3395, p 305 (April 10, 1945), the Attorney General concluded that Sundays and holidays were counted in determining the day on which laws passed by the Legislature became effective under Const 1908, art 5, 21. The applicable provision stated, except with respect to acts given immediate effect, "[n]o act shall take effect or be in force until the expiration of 90 days from the end of the session at which the same is passed." The opinion went on to conclude that the day of adjournment the triggering event is not counted in the computation. Id.

These authorities all support the conclusion that Sundays and holidays should be included when computing the five-day period in art 4, 26.

Moreover, a natural reading of the words "at least five days" offers no textual basis for concluding that "the popular mind" would commonly regard any particular day of the week as somehow excluded from the required minimum of five in the absence of express language to that effect. While no provision of the 1963 Constitution has been identified in which Sundays or holidays were expressly excluded from a governing time period, the 1908 Constitution did include such language that the framers of the 1963 Constitution did not preserve. Compare Const 1908, art 5, 36 (stating that a bill shall become law if it "be not returned by the governor within ten days, Sundays excepted") with Const 1963, art 4, 33 (stating that the applicable period is "14 days measured in hours and minutes from the time of presentation.") This establishes that the framers knew how an intent to exclude Sundays from an applicable period of days could be expressed but chose not to do so in art 4, 26.

Nevertheless, OAG, 1939-1940, p 101 (May 19, 1939), directly considered whether Sundays should be counted for purposes of calculating the five-day period in Const 1908, art 5, 22 and reached the opposite conclusion, opining that Sundays should be excluded from the calculation. In light of the authorities identified above, however, the conclusion reached in that 1939 opinion must now be regarded as superseded.

In addition to the above authorities serving to undercut the conclusion of that opinion, its reasoning was based on circumstances that are no longer relevant today and on an analytical approach that has been rejected by Supreme Court cases that require a strict focus on plain language when construing the Constitution. For example, the opinion reasoned at page 102 that the conditions facing the framers in 1908 supported implying that they intended Sundays to be excluded from the five-day count to afford more time for meeting the purposes of the five-day rule:

At the time of the adoption of the constitution containing this section, means of transportation and communication were not as extensive and expeditious as present day methods afford. While a five-day period of time under present day conditions [1939] might be considered ample for expeditious communication of proposed legislative action or petition or protest in relation thereto, yet twenty-one years ago [1908] it would have been considered brief in which to communicate such information by means then at hand and to afford the public an opportunity to communicate their response thereto. [Emphasis omitted.]

Having regarded five days under conditions in 1939 as "ample" time to meet the purposes of Const 1908, art 5, 22, the adequacy of five days under 1963 conditions to meet the purposes of Const 1963, art 4, 26 when it was adopted could not be regarded as debatable. More importantly, however, in the absence of express language excluding Sundays and holidays from the five-day period in art 4, 26, current case law does not allow entertaining the implication that the 1939 opinion relied upon. See, e.g., Mirac, supra.

It is my opinion, therefore, in answer to your first question, that, in computing the five-day period under Const 1963, art 4, 26 during which a bill must be in the possession of each house of the Legislature before it may become a law at any regular session, Sundays and holidays are counted.

You next ask whether, if a bill passed by one house of the Legislature is presented to the other house on a Tuesday, the bill is eligible for final passage on the following Saturday or Sunday. While a number of cases and Attorney General opinions address the question of whether a bill has undergone a sufficiently material change of purpose to violate art 4, 24, research has not uncovered any case or Attorney General opinion decided over the last 100 years since the five-day rule was first adopted addressing the related timing question you pose.

Analysis must therefore begin with the language of the provision: "No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days." [Emphasis added.]

In OAG, 1913, p 499 (April 22, 1913), the Attorney General was asked whether a bill was "in the possession of the house" other than the one in which the bill originated within the meaning of Const 1908, art 5, 22 when the Clerk of the House or the Secretary of the Senate officially announced that it was printed and on the desks of the members. The request, made by the Senate, also asked whether a bill was eligible for passage in the house other than the one in which it originated, five days after such official announcement of its printing and presence on the desks of the members, after it has passed the house in which it originates. The opinion answered both questions in the negative, viewing the essential issue as whether the possession contemplated by the provision should be deemed to mean the possession of the printed copies of the proposed measure in one house while the measure is still pending in the other house or "whether the construction should prevail that the framers of the Constitution intended to require that the measure must be in possession of the House as a legislative body with the power to take action thereon."

The opinion reviewed the debates of the Constitutional Convention and the object sought to be achieved by the framers of guarding against hasty and ill-considered legislation. It noted that the proposal as first introduced required that a bill should not be passed until it had been printed and in the possession of the house acting upon it for at least ten days, necessitating a period of at least 20 days for the passage of any measure. Observing that the majority of the members considered this period to be unnecessary, the five-day rule was settled upon as a compromise, compliance with which would consume not less than ten days to secure passage of a bill. The opinion then concluded:

[I]n view of the serious consequences involved, both questions should be answered in the negative. In other words, a bill is not to be deemed in possession of the House other than the one in which it originates, until it has been duly passed by the House in which it was first introduced, and formally transmitted after such passage to the second House; and is not eligible to passage in such second House until it shall have been in the possession of that body, with the power to take action with reference thereto, for at least five days.

In addition to the guidance provided by this opinion is the general rule discussed in OAG No 3252 that, when computing periods of time, the day of presentment or the triggering event is excluded from the day count and the last day in the period is included. OAG No 3252 at p 100. See also OAG No 0-3395.

Moreover, other opinions have established the general universality of this rule. For example, in OAG, 1965-1966, No 4531, p 393, 399 (December 27, 1966), the Attorney General concluded that in computing the time for measuring the 60-session-day period during which the Senate may act to disapprove a gubernatorial appointment, the date that the Senate receives the notice of appointment is excluded in counting the 60 session days. Similarly, OAG, 1981-1982, No 6048, p 595 (March 18, 1982), addressed the question whether the day upon which the state budget is transmitted to the Legislature for action to reject or reduce increases in rates of compensation provided by the Civil Service Commission pursuant to Const 1963, art 11, 5 should be counted as part of the 60-calendar-day review period. In concluding that the transmittal day is excluded, the opinion partially relied upon Supreme Court precedent expressing the "more reasonable rule" that when time is computed from the time of an act done, the day on which the act is done is to be excluded from the computation. OAG No 6048 at p 596, citing Gorham v Wing, 10 Mich 486, 496 (1862).

Applying these well-established principles, the answer to your second question is clear. If a bill has been passed by one house of the Legislature and is presented to the other house on a Tuesday, the day of presentment is not included in the calculation, making Wednesday the first day of the five-day period. Because all days of the week are counted toward the total minimum of five, Thursday is day 2, Friday is day 3, Saturday is day 4, and Sunday is day 5. By the Sunday following the Tuesday presentment, the bill will have been in the possession of the second house for a minimum of five days and on that day is eligible for final passage into law.2 This construction fully effectuates the plain language of the five-day rule and advances the purposes sought to be achieved by art 4, 26.

It is my opinion, therefore, in answer to your second question, that, when the Legislature is convened in a regular session, if a bill passed by one house of the Legislature is presented to the other house on a Tuesday, the bill is not eligible for final passage until the following Sunday.

 

MIKE COX
Attorney General

1This opinion addresses only regular sessions of the Legislature because, by its terms, the five-day rule of art 4, 26 applies only to "any regular session of the legislature." (Emphasis added.) See also OAG, 1911-1912, p 286 (February 27, 1912) (construing Const 1908, art 5, 22 the predecessor provision to art 4, 26 as applying to regular sessions only and not to special sessions of the Legislature).

2This eligibility for final passage of the bill under these circumstances extends to any time of the day on day 5 that the receiving house is in session "with the power to take action thereon." Const 1963, art 4,  26, unlike Const 1963, art 4, 33, does not measure the 5-day time period in "hours and minutes."