Sunday, November 18, 2012

Repeal by Referendum in Michigan

On November 6, 2012 the Michigan electorate voted by referendum not to approve Michigan's Emergency Manager law (Public Act 4 of 2011).  Shortly after the election the status of the emergency manager for the Detroit Public Schools was challenged by an activist by means of seeking leave to file a quo warranto complaint in the Michigan Court of Appeals (Davis v. Roberts, COA Case No. 313297).   A quo warranto is a special writ whereby the court removes a public official from office by granting the writ.   MCR 3.306.  Prior to Public Act 4 there was a different emergency manager statute in effect (Public Act 72 of 1990) which provided more limited powers to emergency managers than Public Act 4 did.  Public Act 4 repealed Public Act 72.  The Detroit Public Schools emergency manager was initially appointed by the governor under Public Act 4, but was later reappointed under Public Act 72 after Public Act 4 was suspended pending the referendum.  The activist asserts that both appointments are now void.

The issue then is whether the referendum result effectively revives Public Act 72.   Shortly before the referendum on Public Act 4 was certified and placed on the November 2012 ballot by the Board of Canvassers, the Michigan Attorney General's Office issued an opinion (Michigan Attorney General Opinion No. 7267) that Public Act 72 was revived by the suspension and later disapproval of Public Act 4.   It is unclear which viewpoint will prevail or whether the Michigan Supreme Court will even grant leave to appeal the Court of Appeals ruling.  My guess is that the Michigan Supreme Court will rule that Public Act 72 was revived, but there is an argument to be made that was not.

The Court of Appeals denied the complaint in an order on November 16, 2012.  .  The Court ruled that due to the rejection of Public Act 4 of 2011 by the referendum on November 6, 2012 no part of Public Act 4 remained in effect including the part repealing Public Act 72.  The Court ruled that Public Act 72 was revived by the result of the referendum.  The Plaintiff had argued that MCL 8.4 prevented the revivial of Public Act 72.  MCL 8.4 states that a statute that has repealed by a subsequent statute "shall not be revived by the repeal of such subsequent repealing statute."  The court ruled that MCL 8.4 applied by its plain language only to repeals by statute and not to statutes that were rejected by referendum.  The court also made the point that even if MCL 8.4 applied the voters rejected the entirety of Public Act 4 by referendum inferring that the repeal of Public Act 72 was itself repealed. 

MCL 8.4 was first adopted in 1846.  At common law the repeal of a statute that repealed a previous statute operated to revive the previous statute, but MCL 8.4 changed that as have similar statutes in other jurisdictions.  Jackson v. Michigan Corrections Commission, 313 Mich. 352 (1946).  The court's argument that the plain language of MCL 8.4 only applies to repeals by statute is not unassailable.  The Michigan Supreme Court held in Jackson v. Michigan Corrections Commission that MCL 8.4 applied to both express and implied repeals rejecting an argument that it only applied to express repeals.  Id.  One could argue that rejection by referendum is an implicit repeal even if it did not expressly use the word "repeal."  It is also notable that in other legal contexts such as wills the revocation of a will that revoked a prior will will not act to revive the prior will.  Scott v. Fink, 45 Mich. 241 (1881).

The state would probably challenge the contention that a rejection by referendum is a repeal as it is an act of the people rather than an act of the legislature.  The idea would be that the plain meaning of repeal in many dictionaries is that it is a legislative act.  Also, the legislature would have the opportunity to replace the repealed statute with something new, while the people do not have that option in a referendum.  This argument can be countered by arguing that the effect is the same whether the legislature repeals a statute or the people disapprove it by referendum.   It is also instructive that the original statute now codified as MCL 8.4 was adopted at a time before Michigan had a referendum in the state constitution.  At that time the entire legislative power was entrusted to the legislature.  So the word repeal at the time would apply to the rejection/removal of any law.  In the 1908 Michigan Constitution the people began to reserve the rights of initiative and referendum.  Each Michigan constitution since has reserved these powers to the people in the article describing legislative power.  Hence the referendum could be a legislative act and the rejection by referendum could be a repeal of that law.  The state could counter this by citing In re MCI Telecommunications Complaint, 460 Mich. 396 (1999) where the Michigan Supreme Court was not convinced that MCL 8.4 applied to prevent the revival of Public Service Commission orders after a law repealing them was repealed even though the orders were legislative acts as they were an exercise of powers delegated by the legislature.  However, this ruling may have been dicta and might not have value as precedent.  Also the referendum power was not delegated to the people by the legislature.  Rather it was reserved to the people from the legislative power given to the legislature.

The state would probably also argue that a referendum is a nullification of a law while a repeal is the removal of a law.  However, one could argue that because Public Act 4 was given immediate effect on the day it was signed by the governor, it could not be nullified.  Usually acts of the legislature only take effect 90 days after the end of the legislative session in which they were passed.  The power of referendum requires that petitions be filed within that 90 day window so the idea is generally that the referendum, if certified and put on the ballot, would prevent the law from ever coming into effect as the referendum must be filed within the same period of time.  As this particular act took effect on the day it was signed by the governor it is not accurate to say it was nullified.  It might be more accurate to say it was repealed.

Of course, that would leave open an argument that MCL 8.4 only applies to repeals by statute.  In this instance this is not a problem as the previous act (Public Act 72) and the repealing act (Public Act 4) are both statutes. The only thing that is not a statute is the referendum repealing the repealing statute. MCL 8.4 does not require that the act repealing the repealing statute be a statute as it states, "Whenever a statute [the previous statute], or any part thereof shall be repealed by a subsequent statute [the repealing statute], such statute [the previous statute], or any part thereof, so repealed, shall not be revived by the repeal [the action repealing the repealing statute] of such subsequent repealing statute [the repealing statute]."  For MCL 8.4 it is the fact that the repealing statute was repealed and not the method of repeal that is key.  If the repeal of the repealing statute could only be accomplished by another statute for MCL 8.4 to apply then MCL 8.4 would have stated that expressly.

That said, there is also some case law that tends to support the state on this point.  MCL 8.4 does not apply to the repeal of a legislative abrogation of common law as common law is not a statute. Sayers v. Sch. Dist. No. 1, 366 Mich. 217, 223 (1962) (Souris, J. dissenting). The common law abrogated by a statute would be revived by the repeal of that statute. People v. Reeves, 448 Mich 1, 8 (1995).  However, this rule on the common law rests more on the fact that common law is not a statute than the nature of the act repealing the repealing statute.  The Michigan Court of Appeals observed that a referendum rejecting a law eliminating straight ticket voting reinstated the statute that had been repealed by the rejected law.  McDonald v. Grand Traverse County Election Commission, 255 Mich. App. 674, 680-81 (2003).  However, that case was actually a constitutional challenge to the straight ticket voting law on free association, equal protection, and purity of elections grounds by a candidate running as an independent for public office.  The reference to the referendum was just an observation and not part of the court's holding.  It also conflicts with a Michigan Supreme Court case discussed later in this post.

The state also cited a case from North Dakota in the Attorney General's opinion.  In Dawson v. Tobin, 24 NW2d 737 (ND 1946) the North Dakota Supreme Court ruled that a referendum rejecting a statute that repealed a previous statute operated to revive the previous statute even in the presence of a statute similar to MCL 8.4.  N.D. Cent. Code Section 1-02-16 ("Whenever any act of the legislative assembly which repealed a former act is repealed, such former act is not revived by such repeal.")  That court felt that the referendum would be undermined by allowing the rejected law to have any lingering effect and that the word repeal was restricted to the nullification or replacement of one statute by another statute and that disapproval by referendum was not a nullification or replacement by a statute.  The North Dakota statute could be distinguished from the Michigan Statute in that it provides the context of "an act of the legislative assembly" which informs how the whole statute is read and provides context to the word repeal.  In contrast Michigan's MCL 8.4 merely uses the words statute and repeal without providing the specific context of the legislative assembly that the North Dakota statute does.  Furthermore, North Dakota's referendum process reserves to the people the legislative power to "approve or reject legislative acts, or parts thereof, by the referendum." N.D. Const. Art. III, Section 1.  Michigan's language is stated similarly as, "the power to approve or reject laws enacted by the legislature called referendum."  Mich Const. Art. II, Section 9.  Although initiative and referendum powers are separate powers they can provide context to each other.  In the instance of initiative, "no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature."  Id.  In the context of a referendum "laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof.  If two or more measures approved by electors at the same election conflict, that receiving the highest affirmative vote shall prevail."  Id.  From this wording it is clear that the Michigan Constitution envisioned the people having the power of repeal in the context of both initiatives and referendums.  In initiatives they can repeal a law adopted by initiative far more easily than the legislature can.  In terms of referendums laws approved by the people can still be amended by the legislature, but the Constitution does not say that the legislature may repeal them.  It is implied then that the repeal power for laws approved by the people at referendum rests with the people and not legislature.  Given that repeal of laws initiated by the people is reserved to the people unless the legislature can muster a 3/4 majority to repeal or amend them is set out in the same paragraph it must be the intent of the Constitution to reserve the right of repeal to the people in terms of laws approved by referendum.  Hence, a rejection by referendum could indeed be considered as repealing a law.

There is also some case law that could be used to challenge the state's argument.  In the context of referendums on constitutional amendment initiatives there is a case that would apply MCL 8.4 to referendums.  In 1918 the Michigan Supreme Court decided in Scott v. Secretary of State that a proposed constitutional amendment to the Michigan Constitution could not be placed on the ballot as a referendum.  Scott v. Secretary of State, 202 Mich. 629 (1918).  The proposed amendment would have reversed other constitutional provisions and allowed the manufacture and sale of alcoholic products that were prohibited at the time and revived a repealed statute.  Id. at 645.  The court ruled that the proposed amendment's petition forms did not include the full text of the amendment as was required at the time.  Id. at 645-46. The proponents of the proposed amendment had attempted to revive a previously repealed statute regarding the regulation of liquor in part of the proposed amendment.  Id. at 646.  However, they did not include the text of that statute in the petitions for the proposed amendment.  Id. at 646.  They claimed that the part of the amendment referring to the statute was "merely declaratory of law."  Id. at 646.  The court disagreed stating, "[t]he argument that section 12 of the proposed amendment is merely declaratory of a rule of law, that since section 11 of article 16 of the Constitution repealed, or made inoperative, the liquor laws, the proposed amendment of that section will ipso facto revive them is essentially unsound.  It is not true that in this state the repeal of a repealing statute revives the statute repealed."  Id.   The court essentially ruled that a constitutional amendment initiative could not be used to revive a repealed statute.  This case should still be valid law as another part of it was cited earlier this year by the Michigan Supreme Court.  Protect Our Jobs v. Board of State Canvassers, 145748, 145753, 145754, 145755 (September 5, 2012).

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

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