The following opinion is presented on-line for informational use only and does not replace the official version.

STATE OF MICHIGAN

BILL SCHUETTE, ATTORNEY GENERAL

Article 11, § 8 of the 1963 Constitution applies to a person who, within the immediately preceding 20 years, was convicted of a felony involving dishonesty, deceit, fraud, or breach of the public trust and the conviction was related to the person’s official capacity while holding an elective office or position of employment in a federally recognized Indian Tribe. Under article 11, § 8, such a person is ineligible for election or appointment to any state or local elective office of this State and ineligible to hold a position in public employment in this State that is policy-making or has discretionary authority over public assets.

Opinion No. 7273                                                           

August 15, 2013            

The Honorable Frank Foster

State Representative

The Capitol

Lansing, MI 48909

     You have asked whether Const 1963, art 11, § 8 applies to a person convicted of a crime based on that person’s conduct as a governmental employee or elected official of a federally recognized Indian Tribe.

     Michigan voters added article 11, § 8 to the Michigan Constitution pursuant to Const 1963, art 12, § 1, which provides for constitutional amendments by legislative proposal and a statewide vote.  Section 8 began as Senate Joint Resolution V (2010) and voters approved the amendment at the November 2, 2010 general election.  It took effect on December 18, 2010.

     In its entirety, Section 8 provides:

            A person is ineligible for election or appointment to any state or local elective office of this state and ineligible to hold a position in public employment in this state that is policy-making or that has discretionary authority over public assets if, within the immediately preceding 20 years, the person was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person’s official capacity while the person was holding any elective office or position of employment in local, state, or federal government.  This requirement is in addition to any other qualification required under this constitution or by law.

The legislature shall prescribe by law for the implementation of this section.  [Const 1963, art 11, § 8.]

     Your inquiry refers to a Michigan citizen who intends to run for a local government office in November 2013.  According to information obtained in conjunction with your request, on July 23, 2010, the person pled guilty to Conspiracy to Defraud the United States by Dishonest Means under 18 USC 371. The person was sentenced to imprisonment and ordered to pay restitution on December 15, 2010, and was released from prison on November 30, 2011.

     The actions prompting the federal indictment and guilty plea occurred while the person was serving as Chief of Police of a Tribal police department, and as an elected member of the Tribe’s Board of Directors.  Between 2001 and 2006, the Tribal police department received substantial grant money from the United States Department of Justice’s Community Oriented Policing Services (COPS) Office, with federal shares totaling over $1 million.  In pleading guilty to the charge of Conspiracy to Defraud the United States by Dishonest Means, the person admitted to conspiring to misapply the grant funds for his own personal and political benefit.

     You ask whether Section 8 disqualifies this person from running for local office.  The applicability of Section 8 depends, first of all, on the threshold question of whether Section 8 is self-executing.

I.             Const 1963, art 11, § 8 is self-executing.

     The last sentence of Section 8 provides:  “The legislature shall prescribe by law for the implementation of this section.”  Const 1963, art 11, § 8.  To date, the Legislature has not enacted specific legislation implementing Section 8.  This raises the question of whether the effectiveness of Section 8 depends on implementing legislation.

     A constitutional provision is 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.”  Thompson v Secretary of State, 192 Mich 512, 520; 159 NW 65 (1916) (internal quotation marks and citation omitted).  Constitutional language is not self-executing if it only provides general principles “without laying down rules by means of which those principles may be given the force of law.”  Thompson, 192 Mich at 520 (internal quotation marks and citation omitted).  See also OAG, 1975-1976, No 4964, pp 403, 405 (April 19, 1976) (analyzing whether Const 1963, art 2,   § 8 is self-executing).

     Section 8 does not simply set forth general principles.  Rather, it provides a sufficient rule for disqualifying certain convicted felons from holding public office.  See Thompson, 192 Mich at 520.  Specifically, Section 8 describes the types of offices that are unavailable, prescribes the period of time within which convictions will be considered, and enumerates the class of felonies and the circumstances that will trigger disqualification.  In other words, Section 8 provides a reasonably specific set of elements that must be satisfied for its prohibition to apply.

     Furthermore, implementing legislation is generally unnecessary to give effect to a prohibition.  Musselman v Governor, 448 Mich 503, 523; 533 NW2d 237 (1995), citing Beecher v Baldy, 7 Mich 488, 500 (1859).  Because Section 8 expressly prohibits or disqualifies certain felons from holding an elected or appointed office in Michigan, Michigan case law supports the conclusion that the effectiveness of Section 8 is not contingent upon implementing legislation. 

     And while Section 8 provides that“[t]he legislature shall prescribe by law for the implementation of this section,” this text does not require implementing legislation be enacted before the section can have its intended effect.  See, e.g., Wolverine Golf Club v Secretary of State, 384 Mich 461, 466; 185 NW2d 392 (1971) (holding that Const 1963, art 2, § 9 is self-executing irrespective of its provision that “the legislature shall implement . . . this section”); NAACP v Dearborn, 173 Mich App 602, 613; 434 NW2d 444 (1989) (concluding that Const 1963, art 1, § 2 is self-executing against governmental entities); OAG, 1967-1968, No 4555, pp 36, 41 (April 12, 1967) (concluding that first sentence of Const 1963, art 4, § 10 is self-executing, and the provision imposing upon Legislature the responsibility “to further implement this provision by appropriate legislation” permits prescribing penalties or other consequences for breach of the standard of conduct).

     Because Section 8 supplies a sufficient rule by which it may be given effect and is also an express prohibition, it is self-executing and applies absent implementing legislation.

II.          The elements of Const 1963, art 11, § 8 are satisfied.

     Because the effectiveness of Section 8 does not depend on implementing legislation, Section 8 applies as long as its elements are satisfied.

A.           The office sought is a state or local elective office.

     Section 8 provides, in part, for ineligibility “for election or appointment to any state or local elective office of this state.”  Const 1963, art 11, § 8.  According to your request, the person seeks election to city council, which is a local elective office of the State of Michigan.  See, e.g., MCL 117.3; MCL 168.321.  Thus, Section 8 applies to the office sought in this instance.

B.           The conviction is a felony involving dishonesty, deceit, or fraud, and is within the immediately preceding 20 years.

     To be ineligible for elective office under Section 8, one must have been “convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust,” and the conviction must have occurred “within the immediately preceding 20 years.”  Const 1963, art 11, § 8.[1][1]  As noted above, the person pled guilty to Conspiracy to Defraud the United States by Dishonest Means under 18 USC 371, for misusing federal grant money.  Under federal law, violation of 18 USC 371 is a Class D felony.  See 18 USC 371; 18 USC 3559(a)(4).  Indisputably, the offense at issue involved dishonesty, deceit, fraud, or a breach of the public trust.  Finally, judgment was imposed against the individual on December 15, 2010, well within the twenty-year time frame contained in Section 8.  Thus, Section 8 applies to the felony conviction at issue here.

C.           The conviction relates to the person’s official capacity.

     The next requirement set forth in Section 8 provides that the conviction must be “related to the person’s official capacity.”  Const 1963, art 11, § 8.  At the time of the offense, the person was employed as the Tribe’s Chief of Police, and was an elected member of the Tribe’s Board of Directors.  This person took advantage of those positions to misuse grant funds awarded to the Tribe through the COPS Tribal Resources Grant Program.  The conviction clearly related to the person’s official capacities as Chief of Police and member of the Board of Directors.[2][2] 

D.           The positions constitute an elective or employment position within            local government.

     The only remaining question is whether these positions within the Tribe constitute an “elective office or position of employment in local, state, or federal government.”

     When determining the meaning of words in the Michigan Constitution, settled principles of law in interpreting such provisions apply.  “[T]he primary objective of constitutional interpretation, not dissimilar to any other exercise in judicial interpretation, is to faithfully give meaning to the intent of those who enacted the law.”  Nat’l Pride At Work, Inc v Governor, 481 Mich 56, 67; 748 NW2d 524 (2008).  The courts “typically discern[ ] the common understanding of constitutional text by applying each term’s plain meaning at the time of ratification.”  Nat’l Pride At Work, 481 Mich at 67-68, citing Wayne County v Hathcock, 471 Mich 445, 468-469; 684 NW2d 765 (2004).  The meaning given any term must be that which “reasonable minds, the great mass of the people themselves, would give it.”  People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (internal quotation marks and citation omitted).  Where a constitutional term is undefined, dictionary definitions may be consulted to determine its meaning.  Nat’l Pride At Work, 481 Mich at 69-76.

     Under these guiding principles, the undefined terms “local, state, or federal government” in Section 8 must be given reasonable, common-sense constructions.  The term “government” may reasonably be understood to mean the “[e]xercise of authority in a political unit,” or the “agency or apparatus through which one that governs exercises authority and performs its functions.”  The American Heritage College Dictionary (2000).  Here, the “government” for the Tribe is its Board of Directors and related agencies or departments, like the Tribal Police Department.  See Royal v Police and Fire Comm of Ecorse, 345 Mich 214, 219; 75 NW2d 841 (1956) (“control of a . . . police department is a function of local . . . government”) (internal quotation marks and citation omitted).  These officials and employees hold positions of public trust, and exercise governmental authority and functions for the Tribe. 

     Because Indian Tribes are not considered states, but are domestic dependent nations subordinate to the United States, Cotton Petroleum Corp v New Mexico, 490 US 163, 191-192; 109 S Ct 1698; 104 L Ed 2d 209 (1989); Oklahoma Tax Comm v Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 US 505, 509; 111 S Ct 905; 112 L Ed 2d 1112 (1991), it is appropriate to address Section 8’s use of the term “local government.”[3][3]  The word “local” may be defined as“[o]f, relating to, or characteristic of a particular place,” or “[o]f or relating to a city, town, or district rather than a larger area.”  The American Heritage College Dictionary (2000). 

     Applying these definitions here, the Tribal government functions as a “local” government because its inherent authority to govern extends only to Tribal land and Tribe members.  Oklahoma Tax Comm, 498 US at 509.[4][4]  In other words, the Tribe’s authority is limited to a particular place or part of a larger area.  Indeed, according to the United States Department of the Interior, the Indian Reorganization Act, 25 USC 476 et seq., “afford[s] statutory recognition of [Tribal] powers of local self-government.”  See Cotton Petroleum Corp, 490 US at 202 (Blackmun, J, dissenting) (emphasis added).  Further, as this office has recognized, federal agencies and federal courts sometimes equate Tribal government with local government, even when applicable federal law does not require it.  See OAG, 2003-2004, No 7134, pp 44, 46 (May 21, 2003) (“‘[T]he Code of Federal Regulations makes clear that the administration and maintenance of Indian reservation roads and bridges is basically a function of the local government, which, as regards Route 5, is the Northern Cheyenne Tribe.’”), quoting McDonald v Means, 309 F3d 530, 539 (CA 9, 2002) (internal quotation marks and citation omitted).  Thus, it may reasonably be concluded that the phrase “local . . . government” for purposes of Section 8 includes a recognized Tribal government.  Nash, 418 Mich at 209.

     This conclusion is consistent with the plain language of Section 8, which applies to prior convictions relating to “any elective office or position of employment in local, state, or federal government.”  Const 1963, art 11, § 8 (emphasis added).  The use of the word “any” indicates that the drafters and the people who adopted Section 8 understood that it would have broad application.   Moreover, this provision is not limited to felonies that arise from offices or positions “in this state” in contrast to the first clause of Section 8 – “A person is ineligible for election or appointment to any state or local elective office of this state.”   (Emphasis added). 

     Moreover, this result is consistent with the purpose of Section 8, which is to maintain the public trust in Michigan’s elected and appointed officials.  Section 8 effectuates this purpose by seeking to ensure that only trustworthy persons will hold public office in Michigan, and it uses criminal history as evidence pertaining to trustworthiness.  To help discern the common understanding of constitutional language, it is appropriate to consider “the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.”  Nash, 418 Mich at 209.  This principle supports an inclusive construction of “local, state, or federal government.”  Section 8 began as Senate Joint Resolution V of 2010 and was supported by arguments such as the following:

            State and local government should be more responsive to the needs of residents, and governmental officials need to garner more trust and credibility with the electorate.  To accomplish this, those with a track record of committing felonies involving deceit while in public office or government employment should be prohibited from holding positions of public trust.  Recent events in the City of Detroit, where the former mayor, a former city council member, and former members of the city’s administration have been convicted of felonies committed while in office, shine a bright light on the need for stronger restrictions on the election or appointment of felons.  [Senate Fiscal Analysis, SJR V, August 20, 2010, p 1; emphasis added.][5][5]

     Like the text of Section 8, the history that led to its adoption demonstrates a desire to maintain the public trust in Michigan’s elected officers.  There is nothing in Section 8 to suggest that previous convictions related to service in Tribal government are less relevant to protection of the public trust than convictions related to service in traditional municipal, state, or federal governments.  The circumstances surrounding the adoption of Section 8 support a conclusion that Section 8 applies to convictions related to Tribal government.

     Simply put, the purpose of Section 8 is to maintain the public trust in Michigan’s elected officers by seeking to ensure that only trustworthy persons will hold public office in Michigan.  A criminal history in the context of Tribal government is equally likely to indicate untrustworthiness as a criminal history in the context of municipal, state, or federal government.[6][6]

     In summary, Section 8 is self-executing and is effective without implementing legislation.  Further, in light of the text and purpose of Section 8 and the circumstances leading to its adoption, a position or office within a Tribal government constitutes an “elective office or position of employment in local . . . government” as contemplated in Section 8.  Where, as here, the other elements of Section 8 are satisfied, Section 8 bars a person from election or appointment to any state or local elective office of the State of Michigan if that person has a prior felony conviction that related to the person’s official capacity while the person was holding any elective office or position of employment in a Tribal government.

     It is my opinion, therefore, that article 11, § 8 of the 1963 Constitution applies to a person who, within the immediately preceding 20 years, was convicted of a felony involving dishonesty, deceit, fraud, or breach of the public trust and the conviction was related to the person’s official capacity while holding an elective office or position of employment in a federally recognized Indian Tribe.  Under article 11, § 8, such a person is ineligible for election or appointment to any state or local elective office of this State and ineligible to hold a position in public employment in this State that is policy-making or has discretionary authority over public assets.

BILL SCHUETTE
Attorney General

[1] Although the crime at issue was committed before the effective date of Section 8, application of Section 8 to these facts would not violate the constitutional prohibitions of ex post facto laws in US Const, art I, §10 and Const 1963, art 1, § 10.  Legislation that prescribes qualifications for a profession or office and uses past conduct as “appropriate evidence of such qualifications” does not implicate ex post facto prohibitions, because the intent of such legislation is not to impose additional penalties for past crimes.  Hawker v New York, 170 US 189, 200; 18 S Ct 573; 42 L Ed 1002 (1898); see also Taylor v Secretary of State, 216 Mich App 333, 340-342; 548 NW2d 710 (1996).

[2] In addition to the materials received with this request, this conclusion is also based on this office’s review of the federal court filings, which are public records.

[3] “[M]embers of the various Indian tribes are citizens of the United States and citizens of the state within which they reside.”  Michigan United Conservations Clubs v Anthony, 90 Mich App 99, 109; 280 NW2d 883 (1979) (citations omitted).  And “[a]bsent express federal law to the contrary, [Tribe members] going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”  Mescalero Apache Tribes v Jones, 411 US 145, 148-149; 93 S Ct 1267; 36 L Ed 2d 114 (1973) (citations omitted).

[4] Tribes have authority over their members and a governance structure.  See, e.g., Constitution and Bylaws of the Sault St. Marie Tribe of Chippewa Indians <www.saulttribe.com/images/government/Constitution_amended_2010.pdf> (accessed August 1, 2013).

[5] Also among the circumstances leading to the adoption of Section 8 was a concern about how the misuse of public funds would affect the public trust.  See House Legislative Analysis, SJR V, June 17, 2010, p 1.  Here, the person admitted to conspiring to misapply public funds.  That crime is exactly the type of behavior that people would reasonably expect to trigger the protections of
Section 8.

 [6] This conclusion paralleling a Tribal government to a “local government” is limited to the specific language and purpose of Section 8 pertaining to certain prior felony convictions, and does not apply outside the context addressed in this opinion.