Nick Krieger (@nckrieger):
The Michigan Senate has just passed Senate Bill 248, as amended. Senate Bill 248, introduced by Sen. Joe Hune (R-Hamburg), would amend Michigan's No-Fault Act and make several changes to the way automobile insurance benefits are paid for catastrophic bodily injuries. Among other things, the proposed legislation would (1) phase out the Michigan Catastrophic Claims Association (MCCA), (2) replace the MCCA with a new, private organization that would pay catastrophic claims, (3) cap attendant-care benefits provided by family or household members at $15 per hour, and (4) create a new Michigan Automobile Insurance Fraud Authority.
Today alone, two different Senate substitutes (S-2 and S-3) were introduced, both of which altered the language of Senate Bill 248 as it was originally introduced on March 26th.
It is an extraordinarily common practice in the Michigan Legislature to substitute new language in place of an existing bill, keeping the original bill number, title, and certain text, but making substantial alterations to the bill's remaining language. This practice results in the enactment of a House or Senate substitute instead of the bill that was originally introduced. For example, of the ten public acts that are tied to the May 5th vote on Proposal 1, almost every one was amended by way of a House or Senate substitute that was introduced only hours or minutes before its final, late-night passage.
The five-day clause of article 4, section 26 of the Michigan Constitution provides that "[n]o 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." The change-of-purpose clause of article 4, section 24 states 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 Michigan Supreme Court has held that these two clauses operate in tandem "to preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration irrespective of legislative merit." Anderson v Oakland Co Clerk, 419 Mich 313, 329; 353 NW2d 448 (1984).
I fully acknowledge that substitutes S-2 and S-3 appear to be germane to Senate Bill 248 and did not alter the bill's overall purpose. However, while the use of such substitutes is an extremely common practice, it does raise a significant constitutional question: Can it be said that a House or Senate substitute, introduced mere minutes before final passage, has truly been "in the possession of each house for at least five days"? This question, standing alone, has not been definitively resolved.
Many Democratic Senators have stated that they were expected to vote on the substitutes without having had time to read them. This certainly cannot be what the Framers of the Michigan Constitution or the People who ratified it had in mind. Such last-minute, hasty revision of legislative language by the majority renders nugatory and completely meaningless the protections embodied in article 4, sections 24 and 26 of the Michigan Constitution. See Sackrider v Saginaw Co Bd of Supervisors, 79 Mich 59, 65-66; 44 NW 165 (1889). It also undercuts our system of representative democracy by forcing lawmakers to vote on proposed laws that they have not even had time to consider. The practice is entirely inconsistent with the idea of good government.