Nick Krieger (@nckrieger):
In Michigan, citizens have the constitutional right to directly propose and enact laws at the ballot box by way of a procedure known as the initiative. Daylight saving time, the 10-cent deposit on returnable beverage bottles, and the Medical Marijuana Act have all become state laws through the initiative process. The initiative serves as an important check on the Legislature, allowing the people to take direct steps when their elected representatives in Lansing fail to act.
The initiative process is enshrined in Article 2, § 9 of the the Michigan Constitution of 1963, which provides in pertinent part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative . . . . The power of initiative extends only to laws which the legislature may enact under this constitution. To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight percent . . . of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
Lately, however, the GOP-controlled Michigan Legislature has attempted to restrict the people’s power to invoke the initiative. Last spring, the Legislature amended MCL 168.472a to provide that any signature on an initiative petition that is older than 180 days is invalid.
Whether you like the idea of marijuana legalization or not, the folks at MILegalize — a cannabis-legalization advocacy group — have a pretty strong argument that the new amendment to MCL 168.472a violates the state constitution. And they’ve taken their argument to court.*
On its face, MCL 168.472a applies to both (1) petitions proposing constitutional amendments, and (2) petitions seeking to initiate laws. However, constitutional-amendment petitions and initiative petitions are very different things. Indeed, they are defined and described in two completely separate articles of the state constitution.
The section of the Michigan Constitution that defines and describes constitutional-amendment petitions is Article 12, § 2. It specifies that “[a]ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.” In other words, the Legislature is specifically authorized to regulate the manner of signing and circulating constitutional-amendment petitions. This authorization most likely extends to regulating the timeliness of signatures on constitutional-amendment petitions, including the 180-day limit at issue here.
By contrast, initiative petitions are defined and described in Article 2, § 9. This section — unlike Article 12, § 2 — contains no language specifically authorizing the Legislature to regulate the manner of signing and circulating petitions. Instead, it merely provides that “[t]he legislature shall implement the provisions of this section.” Typically, when specific authorizing language is included in one section of a document but omitted from another section of the same document, the omission must be construed as intentional. Hence, many observers have concluded that the Legislature is not constitutionally permitted to enact laws concerning the timeliness of signatures on initiative petitions.
In the recent action filed by MILegalize, the Michigan court of claims held that the sentence “[t]he legislature shall implement the provisions of this section” authorizes the Legislature to regulate the timeliness of initiative-petition signatures. But this ruling appears to contravene Michigan Supreme Court precedent.
In 1971, in Wolverine Golf Club v. Secretary of State, the Michigan Supreme Court struck down a statute that required initiative petitions to be filed not less than 10 days before the beginning of a legislative session. The Court observed that Article 2, § 9 is “self-executing,” and that the Legislature’s power to “implement the provisions of th[e] section” extends only to “formulat[ing] the process by which initiative petitioned legislation shall reach the legislature or the electorate.” Because the timing requirement in the statute went beyond the constitutional text and “restrict[ed] the utilization of the initiative petition,” the Court concluded that it was unconstitutional and unenforceable.
How is the 180-day requirement of MCL 168.472a any different? It similarly goes beyond the constitutional text and “restricts the utilization of the initiative petition.”
Until the recent amendment took effect, MCL 168.472a only created a rebuttable presumption that initiative-petition signatures older than 180 days were stale. In 1974, citing Wolverine Golf Club, former Attorney General Frank Kelley opined that this 180-day rebuttable presumption was unconstitutional because it was “beyond the legislature’s power to implement [Article 2, § 9].” If the former 180-day rebuttable presumption was unconstitutional, surely the new 180-day hard-and-fast rule must be unconstitutional as well.
It’s true that the Michigan Supreme Court examined Article 12, § 2 in a 1986 case called Consumers Power v. Attorney General, ruling that the constitutional text authorized the statutory 180-day presumption of staleness for signatures on constitutional-amendment petitions. But Consumers Power was limited to the language of Article 12, § 2 — it did not address initiative petitions at all.
Nevertheless, the court of claims has stated that the decision in Consumers Power applies equally to both constitutional-amendment and initiative petitions, remarking: “[O]ur Supreme Court held that the plain language of MCL 168.472a applies to signatures on petitions both to amend the constitution and to initiate legislation.” This is plainly inaccurate. The Consumers Power Court did not even mention Article 2, § 9. Accordingly, that decision cannot be read as applying to initiative petitions. The court of claims also cited the 1982 decision in Citizens for Capital Punishment v. Secretary of State as authority for its ruling. Like Consumers Power, however, Citizens for Capital Punishment only pertained to Article 12, § 2, and did not address the requirements for signing or circulating initiative petitions. Quite simply, the court of claims seems to have gotten it wrong.
MILegalize has appealed the decision of the court of claims, seeking to bypass the Michigan Court of Appeals and proceed directly to the Michigan Supreme Court. Only time will tell if the Michigan Supreme Court will take up the appeal in this politically charged, potentially controversial case. Regardless of what happens in court, however, all Michigan residents should be troubled by the Legislature’s willingness to overstep its bounds and unnecessarily restrict the people’s constitutional right to initiate laws.
* On June 1, 2016, MILegalize filed initiative petitions with the Secretary of State bearing 354,000 signatures — well over the number of signatures required to place an initiative on the statewide ballot. The Board of State Canvassers determined that 200,000 of the signatures were 180 days old or older, and rejected the petitions under the version of MCL 168.472a in effect at the time. The amendment to MCL 168.472a, 2016 PA 142, took immediate effect on June 7, 2016.