Nick Krieger (@nckrieger):
If you haven’t been too distracted by this evening’s Detroit Historic District Commission meeting (at which no historic preservation was actually accomplished), you might have noticed that the Michigan House of Representatives has concurred in House Bills 4188, 4189, and 4190, which the Michigan Senate returned for final approval late this afternoon. These bills—which have now been ordered enrolled and presented to the Governor for his signature—would permit adoption and child-placement agencies to withhold their services on the basis of “sincerely held religious beliefs.” In other words, the bills are designed to protect faith-based adoption agencies from having to place children with gay people, Jewish people, Muslim people, interracial couples, or anyone else that the agencies might possibly find objectionable on “religious” grounds.
The bills are obviously unnecessary and quite possibly violative of the United States Constitution. But here’s my other issue with the bills: The Michigan House of Representatives blatantly violated the Michigan Constitution by giving them immediate effect.
Article 4, section 27 of the Michigan Constitution of 1963 provides that, in general, a public act does not take effect until 90 days after the expiration of the legislative session at which it was passed. However, the Constitution goes on to state that the Legislature “may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.” Historically, this provision was interpreted to mean that an act could take immediate effect only upon passage by two-thirds of the members in both the House of Representatives and the Senate. See Ludka v Dep’t of Treasury, 155 Mich App 250, 260-261; 399 NW2d 490 (1986).
In more recent years, the Legislature has engaged in the fiction that even when a bill passes in one house or the other by a bare majority only, it can still be given immediate effect. How does this work? Both houses of the Legislature have adopted an internal rule providing that after a bill is passed (even if by a bare majority only), there will be a “rising vote” during which legislators wishing to give the bill immediate effect will stand to be counted. Technically, under the provisions of Article 4, section 27 of the Michigan Constitution of 1963, two-thirds of the members elected to the chamber would have to stand in order to make the bill effective immediately. Usually only a few representatives or senators stand when a rising vote is announced. Sometimes a majority of the members stand. Very rarely do two-thirds of the members elected to and serving in the particular chamber actually stand. Nevertheless, it is commonplace for the House or Senate to automatically enter in its Journal that two-thirds of the members stood and that the bill has received immediate effect, even if it isn’t true. It’s a sham. And it happens all the time.
House Bills 4188, 4189, and 4190 all originally passed the Michigan House of Representatives on March 18, 2015, by a vote of 65-44-1. According to the Journal of the House, each bill was given “immediate effect” by two-thirds of the members elected to and serving in the chamber. It is undisputed that there are 110 members elected to and serving in the House of Representatives. Quite simply, 65 is not two-thirds of 110.
Forty-four members of the House of Representatives voted against these objectionable bills. Indeed, many of these 44 representatives had been speaking out against the bills since the day they were introduced. Now, simply because it is printed in the Journal of the House that two-thirds of the members stood to give the bills immediate effect, we are expected to believe that many of these 44 representatives immediately changed their minds and decided to expedite the effectiveness of the very bills that they so vehemently opposed? Ridiculous. To presume that they did would be to abandon all common sense.
So what can be done about this? Apparently nothing. One panel of the Michigan Court of Appeals has ruled that what’s written in the Journal is final, and cannot be contradicted by any other evidence, including evidence of what actually happened on the House or Senate floor! Hammel v Speaker of the House of Representatives, 297 Mich App 641, 649-651; 825 NW2d 616 (2012).
Does this sound logical? Of course not. But the fiction endures. And it is the sole, unconstitutional premise on which immediate effect has been given to House Bills 4188, 4189, and 4190.*
* The three bills did pass the Senate by the requisite two-thirds vote for immediate effect. However, as noted, immediate effect can only be granted by a two-thirds vote in both houses of the Legislature.