in Re Advisory Opinion on 2018 Pa 368 & 369 ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
December 18, 2019 Bridget M. McCormack,
Chief Justice
159160 David F. Viviano,
159201 Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
In re HOUSE OF REPRESENTATIVES Richard H. Bernstein
REQUEST FOR ADVISORY OPINION Elizabeth T. Clement
REGARDING CONSTITUTIONALITY OF Megan K. Cavanagh,
2018 PA 368 & 369 SC: 159160 Justices
___________________________________________/
In re SENATE REQUEST FOR ADVISORY
OPINION REGARDING CONSTITUTIONALITY
OF 2018 PA 368 & 369 SC: 159201
___________________________________________/
On July 17, 2019, the Court heard oral argument on the requests by the House of
Representatives and the Senate for an advisory opinion on the constitutionality of 2018
PA 368 and 2018 PA 369. On order of the Court, the requests are again considered, and
they are DENIED, because we are not persuaded that granting the requests would be an
appropriate exercise of the Court’s discretion.
CLEMENT, J. (concurring).
I concur in the Court’s order denying the Legislature’s request for an advisory
opinion in this matter. I believe that this Court lacks jurisdiction under Const 1963, art 3,
§ 8 to issue an advisory opinion after the effective date of the legislation being
scrutinized, and thus must refrain from doing so here notwithstanding the observations
made by Justice ZAHRA about the importance of the legal issues presented. I believe we
must instead wait for an “actual controvers[y] where the stakes of the parties are
committed and the issues developed in adversary proceedings.” Request for Advisory
Opinion on Constitutionality of 1978 PA 33, 402 Mich. 968, 968 (1978).
I. FACTS
The Michigan Constitution allows Michigan voters to exercise various forms of
direct democracy, one of which is to initiate legislation via petitions signed by a requisite
number of voters. See Const 1963, art 2, § 9. Groups known as “Michigan One Fair
Wage” and “MI Time to Care” sponsored, respectively, proposals known as the
“Improved Workforce Opportunity Wage Act” and the “Earned Sick Time Act.”
Pursuant to MCL 168.473, they filed those petitions with the Secretary of State in the
summer of 2018. The Secretary of State then notified the Board of State Canvassers,
MCL 168.475(1), which canvassed the petitions to determine whether an adequate
number of signatures was submitted, MCL 168.476(1). The Board ultimately certified
2
both petitions as sufficient,1 MCL 168.477(1), and, pursuant to Const 1963, art 2, § 9, the
proposals were submitted to the Legislature. This constitutional provision required that
the proposals were to “be either enacted or rejected by the legislature without change or
amendment within 40 session days from the time such petition [was] received by the
legislature,” with enactment not “subject to the veto power of the governor.” The
Legislature ultimately adopted both “without change or amendment” on September 5,
2018. 2018 PAs 337 and 338. Enacting them meant that they were not “submit[ted] . . .
to the people for approval or rejection at the next general election.” Const 1963, art 2,
§ 9. Had they been submitted to the people and adopted, they would only have been
amendable with a three-fourths majority in the Legislature. Id.
After the 2018 elections, the Legislature turned its attention to these policy areas
once again. Although Attorney General Frank Kelley had, several decades ago, opined
that “the legislature enacting an initiative petition proposal cannot amend the law so
enacted at the same legislative session,” OAG, 1963-1964, No. 4,303, p 309, at 311
(March 6, 1964), a member of the Michigan Senate asked for an opinion on that issue and
Attorney General Bill Schuette issued a new opinion which superseded the prior opinion
and concluded that the Legislature could enact amendments to an initiated law during the
same session at which the initiated law was itself enacted. See OAG, 2017-2018, No.
7,306, p ___ (December 3, 2018). The Legislature thereafter did adopt certain
amendments to these proposals with a simple majority, which—as ordinary legislation—
the Governor signed into law. See 2018 PA 368 and 369. Because neither law contained
a more specific effective date, both took effect on the 91st day after the 99th Legislature
adjourned sine die. Const 1963, art 4, § 27; Frey v Dep’t of Mgt & Budget, 429 Mich.
315, 340 (1987). The Legislature adjourned on December 28, 2018, see 2018 HCR 29,2
so the effective date of 2018 PA 368 and 369 was March 29, 2019.
1
In the case of the “Improved Workforce Opportunity Wage Act,” this happened
pursuant to a writ of mandamus issued by the Court of Appeals. See Mich Opportunity v
Bd of State Canvassers, unpublished order of the Court of Appeals, entered August 22,
2018 (Docket No. 344619), lv den 503 Mich. 918 (2018).
2
Ordinarily, the date of adjournment would have been established by reference to a
certificate of the Secretary of State, which state law requires to be “printed and published
with the laws of the session of the legislature to which it refers . . . .” MCL 4.202. The
statute alludes to the requirement that “[a]ll laws enacted at any session of the legislature
shall be published in book form,” Const 1963, art 4, § 35, and the implementing statute
requires, among other things, this certificate, see MCL 24.1(1)(l). However, volumes
meeting the specifications of MCL 24.1 are not in the collection of the State Law Library
after the 94th Legislature.
3
On February 13, 2019—about a month after the convening of the 100th
Legislature, see Const 1963, art 4, § 13—a member of the Michigan Senate wrote to
newly elected Attorney General Dana Nessel seeking another opinion on whether 2018
PA 368 and 369 had unconstitutionally subverted the constitutional protections for
initiated legislation, and a week later, both chambers of the Legislature adopted
resolutions asking for this Court to issue an opinion under Const 1963, art 3, § 8. See
2019 HR 25; 2019 SR 16. On April 3, 2019, we ordered argument on whether to issue an
advisory opinion. In re House of Representatives Request for Advisory Opinion
Regarding Constitutionality of 2018 PA 368 & 369, 503 Mich. 1003 (2019). We
subsequently ordered additional briefing on the question of whether this Court has
jurisdiction to issue an advisory opinion after the effective date of the legislation being
scrutinized. In re House of Representatives Request for Advisory Opinion Regarding
Constitutionality of 2018 PA 368 & 369, 504 Mich. 918 (2019).
II. ANALYSIS
In my view, this Court lacks jurisdiction under our Constitution to issue an
advisory opinion after the effective date of the piece of legislation being scrutinized—as
is the case here. When construing the Michigan Constitution, “[o]ur primary goal . . . is
to give effect to the intent of the people of the state of Michigan who ratified the
Constitution, by applying the rule of ‘common understanding.’ ” Mich Coalition of State
Employee Unions v Michigan, 498 Mich. 312, 323 (2015). Generally, “[w]e locate the
common understanding of constitutional text by determining the plain meaning of the text
as it was understood at the time of ratification,” although we “also take[] account of ‘the
circumstances leading to the adoption of the provision and the purpose sought to be
accomplished.’ ” Id. (citation omitted).3 “The Address to the People, which was
3
Justice VIVIANO faults me for “rel[ying] on extrinsic circumstances to determine the
purpose of th[is] provision” and “violating a fundamental tenet of textualism,” citing the
writings of the late Antonin Scalia in support of his critique of my references to historical
context and the Address to the People. However, it appears to me that we have explicitly
authorized looking to “extrinsic circumstances to determine the purpose of”
constitutional provisions. In Mich Coalition of State Employee Unions, 498 Mich. at 325-
326, we said that the Address to the People was “[h]ighly significant to our assessment,”
that “the transcript of the constitutional convention debates further confirm[ed]” our
conclusion, and that “historical sources confirm[ed]” our conclusion. I believe my
“interpretive approach” is consistent with Justice Scalia’s. See, e.g., Blatchford v Native
Village of Noatak, 501 U.S. 775, 779 (1991) (“Despite the narrowness of its terms, . . . we
have understood the Eleventh Amendment to stand not so much for what it says, but for
the presupposition of our constitutional structure which it confirms . . . .”). Where, as
here, the terms are not merely narrow, but silent, I believe I am just as justified in
considering the materials I have consulted to discern the text’s meaning.
4
distributed to Michigan citizens in advance of the ratification vote and which explained in
everyday language what each provision of the proposed new Constitution was intended to
accomplish, and, to a lesser degree, the constitutional convention debates are also
relevant to understanding the ratifiers’ intent.” Id. at 323-324. I believe that all of these
sources of meaning—the text of the Constitution, the circumstances leading to its
adoption, and the constitutional convention proceedings (i.e., the Address to the People
and the convention debates)—indicate that this Court lacks jurisdiction to issue an
advisory opinion after the effective date of the legislation being reviewed.
A. CONSTITUTIONAL TEXT
The Michigan Constitution provides that we exercise “the judicial power of the
state . . . .” Const 1963, art 6, § 1. We have described that power as “ ‘the right to
determine actual controversies arising between adverse litigants, duly instituted in courts
of proper jurisdiction.’ ” People v Richmond, 486 Mich. 29, 34 (2010), quoting Anway v
Grand Rapids R Co, 211 Mich. 592, 616 (1920). We also are limited to exercising only
the judicial power. Const 1963, art 3, § 2. Out of respect for that limitation, we have
long taken the position that courts do not “decide or declare abstract questions of right for
the future guidance of suitors.” Street R Co of E Saginaw v Wildman, 58 Mich. 286, 287
(1885). It is beyond the judicial power to opine “where our conclusions could not be
made effective by final judgment, decree, and process[.]” Anway, 211 Mich. at 622.
Consequently, “our only constitutional authorization to issue advisory opinions is found
in Const 1963, art 3, § 8 . . . .” Devillers v Auto Club Ins Ass’n, 473 Mich. 562, 588 n 57
(2005).
So, what does Const 1963, art 3, § 8 provide? “Either house of the legislature or
the governor may request the opinion of the supreme court on important questions of law
upon solemn occasions as to the constitutionality of legislation after it has been enacted
into law but before its effective date.” We have recognized this text as effectively
describing elements for advisory opinions. “ ‘Michigan’s Constitution . . . restricts
advisory opinions to[:] [1] important questions of “law”, [2] concerning the
“constitutionality” of legislation, [3] “upon solemn occasions” when requested by either
house of the Legislature or the Governor, [4] after the legislation has been enacted into
law but before the effective date.’ ” Request for Advisory Opinion on Constitutionality of
1975 PA 227, 395 Mich. 148, 149 (1975), quoting Advisory Opinion re Constitutionality
of 1972 PA 294, 389 Mich. 441, 482-483 (1973) (LEVIN, J., concurring).4 Strictly
4
Justice VIVIANO asserts that “the phrase ‘upon solemn occasions’ . . . is a legal term of
art describing the circumstances in which this Court may properly exercise its discretion
to issue an advisory opinion.” But the constitutional text clearly lists a “solemn
occasion” as a separate element from the timing requirement; whatever effect the timing
requirement has on us, it is distinct from the “solemn occasion” requirement. Thus, no
one disputes that, regardless of how solemn the occasion, we cannot render an advisory
5
speaking, the constitutional language only empowers the Legislature to ask for an
opinion, and it imposes certain requirements when the Legislature does so. The next
question is whether the constitutional provision is bilateral—whether it applies to this
Court as much as the Legislature.
There is no dispute that at least some of the provisions of Const 1963, art 3, § 8
apply to this Court as well as the Legislature. Thus, while that section does not
affirmatively grant this Court the power to issue advisory opinions, there is no dispute
that we can.5 To hold that the Legislature may ask for an opinion but we may not issue
one would render the constitutional text nugatory.6 That the Legislature may only ask
opinion about some other issue than a statute’s constitutionality. The quotes from the
convention delegates offered by Justice VIVIANO relate to this Court looking to the
“solemn occasion” language as allowing this Court not to render an opinion, not granting
an affirmative power to do so. Notably, the several other state constitutions Justice
VIVIANO cites all contain language requiring their state supreme courts to issue advisory
opinions, and it is in this context that other state supreme courts have focused on this
language to avoid rendering advisory opinions they are disinclined to issue. See Topf, A
Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial
Supremacy (New York: Oxford University Press, 2011), p 72 (“The only qualifications
[in the Maine constitutional clause requiring advisory opinions] were that the opinions be
given only ‘upon important questions of law’ and only ‘upon solemn occasions.’ The
qualifications became, in the six states whose provisions included them, a window of
opportunity [to get around the constitutional mandate].”) (citation omitted). I am aware
of no authorities suggesting that the “solemn occasion” language provides independent
authority that we would otherwise lack to issue an opinion, and I conclude that treating it
as an element that must be satisfied distinct from the timing requirement is more
consistent with the constitutional text and our statement in Advisory Opinion on 1975 PA
227.
5
See Ortner, Fayz & DeQuick, Annual Survey of Michigan Law: June 1, 1989–May 31,
1990, Civil Procedure, 37 Wayne L Rev 373, 380 n 29 (1991) (“The authority of the
supreme court to render advisory opinions is indirectly conferred by the authority granted
the legislature or governor to request an advisory opinion[.]”). Because of this dynamic,
I disagree with Justice VIVIANO’s discussion of the “grammatical structure” of the
constitutional section. Since our authority to opine is derived from the Legislature’s
authority to request an opinion, I am unpersuaded that the fact that the timing
requirement is grammatically tied to the making of the request ought to change my
analysis.
6
We have, for that matter, also said that we may not render advisory opinions to anyone
other than the Legislature or Governor. See Advisory Opinion re Constitutionality of
1974 PA 242, 394 Mich. 41, 53 (1975), quoting Advisory Opinion re 1972 PA 294, 389
6
about questions of “law” confines us to answering questions that do not require factual
development. See Request for Advisory Opinion on the Constitutionality of 1979 PA 57,
407 Mich. 60, 66 (1979), quoting Advisory Opinion re Constitutionality of 1974 PA 272,
393 Mich. 916 (1975) (refusing to issue an advisory opinion where “[t]he questions ‘are
so broad that any advisory opinion of the Court would depend for resolution on whatever
particular factual situations the Court would be forced to hypothesize”). There is also no
dispute that “[t]he Court may be requested to render an advisory opinion only concerning
‘the constitutionality of legislation’ . . . .” Id. at 67. See also Advisory Opinion re 1972
PA 294, 389 Mich at 483 (LEVIN, J., concurring) (“It would appear . . . that in the context
of an advisory opinion, we may not examine questions of fact, and questions concerning
the interpretation or construction of a statute may not be considered except as those
questions affect a constitutional question.”) We have also held that the requirement that
requests for advisory opinions not come until after legislation has been enacted into law
constrains both the Legislature and this Court. Request for Advisory Opinion on 1975 PA
227, 395 Mich at 149-150 (“Viewed against what the Constitution requires, § 200 of
1975 PA 227 is insufficient to invoke this Court’s discretionary power to render an
advisory opinion. . . . [T]he request was made during the enactment process itself,
whereas the Constitution requires that the request be made after enactment and before the
effective date.”).7
The question we face here is what to make of the “effective date” deadline in the
Constitution. It clearly requires the Legislature to request an advisory opinion prior to
the effective date, and when it asks too late, we may not opine. See Request for Advisory
Opinion on Constitutionality of 1975 PA 222, 395 Mich. 361, 361 (1975); Request for
Advisory Opinion on the Constitutionality of 1975 PA 195 & 196, 395 Mich. 642 (1975).
But if the Legislature must ask prior to the effective date, I believe we must also opine
before the effective date. Arguably, the resolution of this issue can be found in our
discussion of the elements of advisory opinions. We said that “ ‘Michigan’s Constitution
. . . restricts advisory opinions to . . . after the legislation has been enacted into law but
before the effective date.’ ” Request for Advisory Opinion on 1975 PA 227, 395 Mich at
149 (citation omitted). While the question there was whether the Legislature’s request
Mich at 485 (LEVIN, J., concurring) (“ ‘We are not . . . constitutionally authorized to
furnish advisory opinions to the Michigan Trial Lawyers Association or a committee of
the State Bar’. Similarly, we are not constitutionally authorized to furnish advisory
opinions to the Attorney General or amici.”).
7
More broadly, we have indicated that satisfaction of the timing requirements of the
advisory opinion section are jurisdictional. See In re Request for Advisory Opinion
Regarding 2005 PA 71, 479 Mich. 1, 13 (2007) (“Because the House of Representatives
requested an advisory opinion well before th[e effective] date, this Court indisputably has
jurisdiction . . . to render an advisory opinion in this matter.”).
7
had been made “after [the statute] ha[d] been enacted into law”—and is therefore perhaps
distinguishable from our present concern—our remark certainly came in the course of
closely considering the jurisdictional consequences of the timing requirements in the
advisory-opinion process, and thus may well be the sort of “ ‘principle[] of law
deliberately examined and decided by a court of competent jurisdiction [that] should not
be lightly departed,’ ” People v Graves, 458 Mich. 476, 480 (1998), quoting People v
Jamieson, 436 Mich. 61, 79 (1990) (opinion by BRICKLEY, J.). We have more clearly
remarked in subsequent nonbinding dicta that the timing requirements apply to this
Court. See Wayne Co v Hathcock, 471 Mich. 445, 485 n 98 (2004) (“The only instance in
which we are constitutionally authorized to issue an advisory opinion is upon the request
of either house of the Legislature or the Governor—and, then, only ‘on important
questions of law upon solemn occasions as to the constitutionality of legislation after it
has been enacted into law but before its effective date.’ ”).8 Regardless of how bound we
ought to consider ourselves by these prior remarks of ours, I believe they are in any event
correct. I have two reasons for this conclusion.
First, I see no reason that all of the other requirements of the advisory opinion
section would apply to both this Court and the Legislature, but the “before its effective
8
See also Woodman v Kera LLC, 486 Mich. 228, 264 n 2 (2010) (opinion by MARKMAN,
J.) (“Const 1963, art 3, § 8, authorizes this Court to issue advisory opinions concerning
the constitutionality of legislation, but . . . only after it has been enacted into law but not
yet taken effect.”). Many commentators have characterized the “effective date” language
as a restriction on our ability to opine. See 22 Michigan Civil Jurisprudence, Statutes,
§ 125, p 710 (“The Michigan Supreme Court may render . . . an opinion as to the
constitutionality of legislation after it has been enacted into law but before its effective
date.”); 7A Michigan Pleading & Practice (2d ed), § 52:20, p 30 (“The Constitution
empowers the Supreme Court to furnish advisory opinions . . . , but only as to legislative
acts that are already passed and signed by the governor, and before they become
effective.”); Note, State Court Advisory Opinions: Implications for Legislative Power
and Prerogatives, 97 BU L Rev 2243, 2259 (2017) (“The Michigan
Constitution . . . permits an advisory opinion to be issued only after a bill ‘has been
enacted into law but before its effective date.’ ”); Doubtful and Perilous Experiment, p 95
(“Michigan’s constitution limits advisory opinions to advice on legislation only after it
has been enacted but before its effective date.”); Baughman, Justice Moody’s Lament
Unanswered: Michigan’s Unprincipled Retroactivity Jurisprudence, 79 Mich BJ 664,
667 n 31 (2000) (Our authority to issue advisory opinions “may be exercised only . . .
after the legislation has been enacted but before it has gone into effect . . . .”); Civil
Procedure, 37 Wayne L Rev at 380 (“Although the Michigan constitution confers
authority upon the court to render advisory opinions, that authority . . . is restricted . . . to
questions concerning the constitutionality of enacted legislation that has not yet taken
effect.”).
8
date” requirement would not.9 That the Constitution expresses any timing element at all
implies restrictions on the prerogatives of the branches of government during the
advisory-opinion process. Consider that—again, strictly speaking—the Constitution says
only that the Legislature “may request the opinion of the supreme court . . . as to the
constitutionality of legislation after it has been enacted . . . .” It does not expressly say
that such a request cannot be made before legislation is enacted, for example by saying
that the Legislature “may request the opinion of the supreme court . . . only after [the law]
has been enacted.” Instead, such a restriction is implied, although we have (correctly, in
my view) said that it exists—and that it restrains both this Court and the Legislature.10
See Request for Advisory Opinion on 1975 PA 227, 395 Mich at 149-150. The
Constitution then also requires that such a request be made “before [the legislation’s]
effective date.”11 The implicit requirement to wait until legislation has been enacted, and
the explicit requirement to ask before it takes effect, creates a window of time within
which requests must be made.
I believe the existence of this window communicates limitations on both the
ability to request an advisory opinion from us and our ability to render one. That the
Legislature cannot ask (and we cannot opine) until the legislation is enacted appears to be
aimed at requiring the Legislature to have committed to a particular course of action,
leaving us out of acting as legislative counsel during the drafting process. 12 But what
9
Justice MARKMAN does not believe my read of the Constitution is “even a reasonably
logical implication of” the constitutional language, but I struggle to see the logic of
accepting that all of the other requirements of the advisory-opinion process apply to both
the Legislature and this Court, but that this requirement, uniquely, applies only to the
Legislature. I see no textual basis for distinguishing the “before its effective date”
requirement from the others.
10
Justices MARKMAN and VIVIANO acknowledge that the Constitution requires that the
Legislature wait to ask for an advisory opinion until after the legislation is enacted, but a
close reading of the Constitution indicates that it no more expressly requires that than it
expressly precludes us from issuing a posteffectiveness advisory opinion. Both
restrictions are, instead, implied from the text and its apparent purpose.
11
The Constitution’s use of “but” in the phrase “but before [the law’s] effective date,” in
but’s conjunctive sense that indicates an exception, avoids any lack of textual clarity
about whether that functions as a restraint—it undoubtedly does. See The American
Heritage Dictionary of the English Language (5th ed), defs 3 and 4 (defining “but”).
12
This apparent purpose for the text was also the stated rationale offered by the
proponent of the language at the convention, future Secretary of State Richard Austin.
See 1 Official Record, Constitutional Convention 1961, p 1548 (“[W]ould it be possible
for us to add some language to indicate that this should be done by the supreme court
9
purpose is served by requiring that the request arrive before the effective date, if our
opinion must not also be rendered before the effective date? If we can issue an advisory
opinion after the effective date, why does the Constitution bother to expressly state that
the request must arrive before then? What has changed the day after legislation takes
effect such that the Legislature may not even ask but we can still opine? It seems
apparent to me that the “before the effective date” deadline communicates a structural
function similar to the “after it has been enacted into law” requirement.13 In my view,
that structural function is forcing the Legislature to request, and this Court to issue, an
opinion before legislation takes effect, so the Legislature can remedy defects we
identify.14 Therefore, I believe the presence of the deadline for the Legislature to make
the request also implies the same deadline for us to act upon it, in much the same way as
the implied requirement that the Legislature not ask before legislation is enacted leaves
us unable to opine. In other words, our ability to opine coincides with the window of
time within which the Legislature can ask.15
only after the legislation has been enacted into law? This, of course, would simply
prevent the supreme court from getting involved until the legislative process was
completed and they would be working with a law rather than some bills or proposals for
legislation.”).
13
Justice MARKMAN contends that the Constitution draws a distinction between
requirements as to the “substance” of advisory opinions and the “procedural” requirement
of proper timing. However, it seems apparent to me that the timing requirement—at least
on the front end, requiring that we not opine until a statute is “enacted into law”—is more
than procedural, but is rather substantive and structural. If that requirement is structural,
I see no reason the other end of the timing requirement would not be as well.
14
Consistent with this, one delegate remarked that he supported the proposal to add this
section because “it enables us to settle questions . . . in advance without the necessity for
going through all the agony of setting up [executive branch] divisions and departments
and then having to dismantle them” and “it gives the legislature and the governor . . . an
opportunity to get a decision rather than to plunge ahead regardless of what the legal
outcome may be.” 1 Official Record, Constitutional Convention 1961, p 1544 (emphasis
added).
15
Justice MARKMAN faults my interpretation because it imposes one “additional and
applicable time restriction . . . found nowhere within the language of Const 1963, art 3,
§ 8 or anywhere else within our Constitution.” I struggle to see why he objects to this.
The word “moot” does not appear anywhere in the Constitution either, yet filing an
application for leave to appeal that is timely under MCR 7.305(C) does not insulate the
proceeding from being dismissed for mootness. See, e.g., People v Givens, 482 Mich.
1072 (2008); People v Newell, 444 Mich. 899 (1993). A party who “relied on th[e] clear
and unambiguous language [of MCR 7.305(C)] in reaching the conclusion that this was
10
My second observation about the text of the Constitution is that I believe our
extraordinary power to issue advisory opinions must be construed in light of our ordinary
exercise of only the judicial power.16 We are only expressly granted “the judicial power”
in Const 1963, art 6, § 1—and, in fact, expressly confined to the judicial power, Const
1963, art 3, § 2—while our ability to issue advisory opinions is an implicit exception to
that limitation under Const 1963, art 3, § 8. Careful consideration of the nature of our
“judicial power” suggests we cannot issue advisory opinions after the effective date of
the legislation being reviewed.17 Advisory opinions are “a departure from the historic
judicial scheme.” Request for Advisory Opinion on Constitutionality of 1977 PA 108,
402 Mich. 83, 86 (1977). In my view, the best way to reconcile these constitutional
provisions is to conclude that advisory opinions can only be issued prior to the effective
date of the legislation being scrutinized. An advisory opinion prior to the effective date
of legislation is far more consistent with the nature of an advisory opinion—and therefore
is in less tension with our ordinary constitutional constraint of being limited to “the
the only applicable time restriction” may well be sorely disappointed. Indeed, although
the court rule is arguably of constitutional significance—since it is promulgated pursuant
to our authority to prescribe both our own appellate jurisdiction and rules of procedure,
Const 1963, art 6, §§ 4 and 5—we have not treated our ability to promulgate the rule as
an opportunity to broaden the judicial power the Constitution vests us with so as to
dispense with mootness as an obstacle to adjudication. Justice MARKMAN is unpersuaded
by this observation because the doctrine of mootness is “well established,” but it seems to
me to be in the nature of a question of first impression that the answer to it is not yet well
established. We have never performed this analysis before, so I am not surprised that an
answer to it is not “well established.” Moreover, if it is acceptable to advocate that this
Court overrule itself and reinstate a rule of law it has expressly rejected, see Ader v Delta
College Bd of Trustees, 493 Mich. 887, 887-889 (2012) (MARKMAN, J., dissenting)
(calling on the Court to grant leave to appeal so as to overrule Lansing Sch Ed Ass’n v
Lansing Bd of Ed, 487 Mich. 349 (2010)), I believe my argument that the Court ought to
recognize a rule it has never before considered should not be faulted for its novelty.
16
While Justice VIVIANO faults my analysis for discerning a rule that is not “explicitly
decreed,” I would note that our power to issue advisory opinions is just as
“extraordinary,” yet is also not “explicitly decreed.”
17
Justice MARKMAN describes the language of Const 1963, art 3, § 8 as “straightforward
and unambiguous,” but I disagree, at least as to this issue—because it does not expressly
grant this Court the authority to issue advisory opinions (even while undoubtedly
implying it), the parameters of our advisory-opinion power are not clear from the text
alone given its uneasy juxtaposition with our ordinary exercise of what is essentially its
antithesis, the judicial power.
11
judicial power”—than an advisory opinion after the effective date. Prior to the effective
date, the Legislature can act on our advice to avoid the harm and confusion attendant to a
statute’s being found unconstitutional. After the effective date, harms have already been
suffered; an abstract statement from this Court holding a law unconstitutional
posteffectiveness may well introduce more confusion, rather than less, given that the
issue would not be presented in the context of an actual plaintiff suffering a discrete harm
that can be remedied with a court order. Consequently, I think the nature of the advisory-
opinion process as a limited exception to our ordinary exercise of “the judicial power”
means that the text of the Michigan Constitution itself suggests that advisory opinions
after the effective date of legislation are not allowed.18
B. THE CIRCUMSTANCES LEADING TO CONST 1963, ART 3, § 8
As noted, our caselaw establishes that where the meaning of the constitutional text
is doubtful, we can supplement it with other considerations, such as the circumstances
leading to the adoption of the relevant provision. Here, those circumstances also indicate
that issuing such opinions after the effective date of legislation was not contemplated.
While Justice Markman asserts that “expediting an answer to a question that can only be
answered by this Court . . . is the very purpose of an advisory opinion,” I believe this
history demonstrates the contrary. I believe the lesson of the story is that the advisory-
opinion process was not intended to provide an expeditious answer, but rather to avoid
the problems that can sometimes attend to a law being held unconstitutional after it
becomes effective—to enable review of a statute before any injury has been suffered.
18
Justice MARKMAN disagrees with my characterization of the advisory-opinion process
as a limited exception to our exercise of the judicial power and claims it instead
“broaden[ed] this Court’s, and this state’s, ‘judicial power’ to also encompass the
authority to issue advisory opinions . . . .” The structure of the Constitution suggests that
his gloss is incorrect; while Article 6 of the Michigan Constitution lays out the
parameters of the judicial power, see Const 1963, art 6, § 1 et seq., the advisory-opinion
process is provided for in Article 3. Moreover, we have characterized an advisory
opinion as “not a judicial determination of the question by the court,” Anway, 211 Mich.
at 603, as well as cited with apparent approval the remark that “[i]n no sense, even
though . . . signed by five or more Justices . . . , would . . . an [advisory] opinion be or
become a judicial determination,” Advisory Opinion re Constitutionality of 1972 PA 294,
389 Mich. 441, 461 n 1 (1973), quoting Advisory Opinion re Constitutionality of PA 1966,
No 261, 379 Mich. 55, 67 (1967), rev’d on other grounds 380 Mich. 736 (1968) (BLACK,
J., concurring). See also Cassidy v McGovern, 415 Mich. 483, 498 (1982) (citing Justice
BLACK’s concurrence with approval); Justice Moody’s Lament, 79 Mich BJ at 667 n 31
(Our authority to issue advisory opinions “is a special authority, not part of the judicial
power . . . .”).
12
The advisory-opinion provision was added to the Constitution in response to the
fiscal and legal crises Michigan suffered in the middle decades of the 20th century
relating to the sales tax. “The sales tax came to us in the depths of a great depression in
order to provide the means for fulfilling desperate governmental needs.” Lockwood v
Comm’r of Revenue, 357 Mich. 517, 545 (1959).
By 1932, as a consequence of the Depression, [property] tax
delinquency in Michigan had increased to frightening proportions, thus
drastically reducing the yield from property tax assessments at the very
time when additional monies were so desperately needed. By 1933 the
delinquency rate was reported to be the highest in the country. . . . In
November 1932 voters approved an amendment to the constitution that
limited property taxes to no more than fifteen mills (1.5 percent) of
assessed valuation.[19] This virtually forced the legislature to find new
sources of revenues, because fifteen mills was inadequate to support state
as well as county, township, and school programs. Thus in 1933 the
legislature . . . passed [1933 PA 62,][20] an act under which property taxes
would go entirely to local units of government.[21] To replace the $23.5
million the state had received from property taxes in 1932, the legislature
enacted [1933 PA 167,][22] a 3 percent sales tax. [Dunbar & May,
Michigan: A History of the Wolverine State (Grand Rapids: Wm. B.
Eerdmans Publishing Co, 1995), p 523.]
However, “[t]he sales tax, powerful though it was, was vulnerable to avoidance.”
Lockwood, 357 Mich. at 546.
19
Const 1908, art 10, § 21, the legality of which was tested in Pontiac Sch Dist v City of
Pontiac, 262 Mich. 338 (1933). Our current Constitution contains a modified analogue.
See Const 1963, art 9, § 6.
20
This statute is, to this day (in amended form), our Property Tax Limitation Act, MCL
211.201 et seq.
21
See also Wikman v Novi, 413 Mich. 617, 688 n 66 (1982) (“After the 15-mill limitation
was added to the constitution in 1932 and the Property Tax Limitation Act was enacted in
1933, the state ceased to receive a share of the tax revenues generated by the local
assessment process.”).
22
This statute is, to this day (in amended form), our General Sales Tax Act, MCL 205.51
et seq.
13
If the purchase, possibly of an automobile, were made not in Michigan but
in a neighboring State the Michigan sales tax would not apply. Thus not
only did the State of Michigan lose the tax moneys but a Michigan
merchant lost the sale. . . . To meet the threat of avoidance a tax was
enacted[, 1937 PA 94].[23] The article purchased in another State would be
taxed in Michigan by virtue of its use here, and at the same rate[24] as if sold
in Michigan in the first place. This was the use tax. Through its enactment
the flight across the border was blocked, the Michigan merchant protected
in his competitive position, and the State tax funds safeguarded. [Id.]
The sales and use taxes were an effective form of government finance. The sales tax
“was a tax easily collected and possessing the power of producing vast revenue.” Id. at
545. “No meal could be consumed without its payment, no shelter built, no clothing
purchased without meeting its exaction, and in advance. It fell on all alike, and without
regard to want or ability to bear the tax. Vast sums poured into the State treasury.” Id. at
545-546. “It soon became our leading source of revenue,” id. at 546-547, and “[b]y 1937
this tax was bringing in over $55 million,” Michigan, p 523.
However, “the distribution of these funds” eventually became a problem.
Lockwood, 357 Mich. at 546. First, “an amendment added to the constitution in 1939
forbade the use of revenues derived from the gasoline and weight taxes for anything but
highways.”25 Michigan, p 524. Second, sales tax revenues also were constitutionally
restricted.
The sales tax . . . satisfactorily met the state’s needs for more than a
decade. During World War II, in fact, revenues from this and other taxes
had resulted in the accumulation of a sizable surplus in the state treasury.
But local governmental units found themselves caught in a squeeze. Rising
costs of materials as well as wages and salaries created a serious problem
for them in view of the fifteen-mill tax limitation. At every legislative
session mayors and school superintendents entreated the legislature for
state aid. The response was meager. As a result of this situation, a
constitutional amendment providing for the diversion of part of the state
sales tax to local units was placed on the ballot by petition and adopted by
the people in 1946.[26] [Id. at 551.]
23
This statute is, to this day (in amended form), our Use Tax Act, MCL 205.91 et seq.
24
That is to say, at the time 3%.
25
Const 1908, art 10, § 22. Our current Constitution contains a modified analogue. See
Const 1963, art 9, § 9.
26
Const 1908, art 10, § 23, the legality of which was tested in City of Jackson v Comm’r
14
The amendment “took out of the hands of the legislature the spending of most of the 3
cents paid in.” Lockwood, 357 Mich. at 547.
One-half of 1 cent went back to the counties and the other half to school
districts. These diversions left 2 cents of the tax, but of those 2 cents
almost half in turn, also was earmarked by the same amendment, leaving
the legislature only a little over one-fifth of the total sales tax moneys
available for distribution in its discretion. [Id.]
See also Michigan, p 551 (“At the time it was approved, it diverted some 77 percent of
the state’s revenues to local governmental units.”). “The adoption of this ‘sales tax
diversion amendment’ marked the beginning of a long period of financial problems and
difficulties for the state government.” Id. With “the bulk of the money . . . no longer
available for the general expenses of government,” “[i]t require[d] no great acuity to
anticipate the next step since the path is worn smooth by constant use”: “It was simply to
increase the tax.” Lockwood, 357 Mich. at 547.
That avenue, however, was sealed off. “The sales tax, said our people, was not to
follow this well-worn path of constant increases.” Id. “An amendment [to Const 1908,
art 10, § 23] adopted in 1954 limited the sales tax to 3 percent.” Michigan, p 552. This
prompted a fiscal crisis. “By July 1, 1958, the state treasury showed a deficit of $21.1
million. . . . The amount of the deficit increased to $95.4 million by July 1, 1959.” Id.
“On August 29 lawmakers passed a series of bills to increase tax revenues,” and “[m]ain
reliance was placed . . . upon [1959 PA 263,]” id. at 560-561. This statute amended the
Use Tax Act to increase the tax to 4%, except for articles on which 3% sales tax had
already been paid—for those, the use tax would be only 1%. Moreover, the statute
contained “accommodation devices” whose “combined effect . . . [was] to convert the tax
from one purportedly levied upon the user for his use of personal property, and to be
reported and paid by him, into a tax to be collected by the seller at the point of sale and
for the collection and reporting of which he, and he alone, [was] responsible.”
Lockwood, 357 Mich. at 551-552. “In effect this was an addition to the 3 percent sales
tax,” but “[b]y calling it a use tax the legislature sought to evade the constitutional limit
of 3 percent on the sales tax.” Michigan, p 561.
In an original action for mandamus in this Court, Charles Lockwood 27 challenged
the constitutionality of the 1959 use tax amendment. We took “judicial notice of what
of Revenue, 316 Mich. 694 (1947). Our current Constitution contains a modified
analogue. See Const 1963, art 9, § 10.
27
Charles Lockwood, a Detroit College of Law professor, perhaps most prominently
represented several service members caught up in the “Red Scare” of the 1950s and
accused of being communists. His work getting Milo Radulovich reinstated in the United
State Air Force is commemorated by a Michigan Legal Milestones plaque outside the
15
every citizen of this State kn[ew] from his daily life”: “[i]n actual operation of the tax, . . .
[a] tax of 4% upon retail sales [was then] being collected by retailers in every city and
village and township of Michigan,” leaving “[t]he citizens of this State . . . under no
illusion—the tax payable by them upon their retail purchases ha[d] been increased above
the 3% rate despite the prohibition in their Constitution.” Lockwood, 357 Mich. at 553-
554. “[A] levy of 4% [was being] made on the sale of every loaf of bread, every pair of
shoes, and every stick of furniture despite the constitutional limitation of 3%.” Id. at 559.
We held that the 1959 use-tax amendment was an unconstitutional effort to evade the
constitutional sales-tax limit and ordered the state “to desist and refrain from levying,
assessing or collecting the additional 1% tax . . . .” Id. at 560.
Although the use-tax law had an effective date of September 1, 1959, see 1959 PA
263, § 2, and we issued our opinion in Lockwood holding it unconstitutional on
October 22, 1959, several millions of dollars of tax revenue were unconstitutionally
collected in the interim. At the constitutional convention, the proponent of the advisory-
opinion section of our Constitution, future Secretary of State Richard Austin, remarked:
I am intensely interested in having a provision of this sort included
in the constitution because I had quite a bit of experience with the 1959 law
to increase the sales tax by way of a very peculiar means, through the use
tax, to 4 per cent. Subsequently it was declared unconstitutional and there
was well over $20 million of moneys collected from taxpayers in small
amounts that could not be refunded to them.[28] It was collected from them
unconstitutionally, but it could not be refunded to them because there were
administrative problems involved. And I certainly would not like to see a
recurrence of this kind of affair. . . . This would do what I think needs to be
done. It would first require that both houses of the legislature pass on the
legislation and even the governor sign the bill so that we do have a law
which the court can rule on, at least as to the constitutionality of it, but at
least give the court a chance to look at it before it becomes effective and
taxes are collected under the defective law. [1 Official Record,
Constitutional Convention 1961, p 1547.]
MSU College of Law. See State Bar of Michigan, Milo Radulovich and the Fall of
McCarthyism
(accessed
November 26, 2019) [https://perma.cc/X66W-E6T4]. See generally Ranville, To Strike
at a King: The Turning Point in the McCarthy Witch-Hunts (Troy: Momentum Books,
Ltd, 1997).
28
Other sources offer a smaller figure. See Michigan, p 711 n 16 (“Although the use tax
was thrown out by the courts, about $13 million had already been collected, of which
amount applications were received for the refunding of only $900,000.”).
16
The apparent problem the advisory-opinion section was trying to solve, in other words,
was to prevent the collection of unconstitutional taxes in the first place.
In my view, then, the history of the sales- and use-tax challenge builds on the
constitutional text to further demonstrate that an advisory opinion after legislation’s
effective date is not contemplated by the Constitution. The reason we consider the
circumstances leading up to the adoption of the constitutional provision is that a
“constitutional provision must receive a reasonable construction, with a view to give it
effect,” which focuses on identifying “the mischief designed to be remedied . . . .”
People ex rel Drake v Mahaney, 13 Mich. 481, 497 (1865).29 The problem the advisory-
opinion section was intended to solve was the one caused by Lockwood, but the problem
there was not an insufficiently expeditious review of the statute. The case was an original
action in this Court and was resolved slightly more than seven weeks after the legislation
took effect.30 Rather, the review was inadequate because the unconstitutionally collected
taxes could not be returned to the taxpayers. The advisory-opinion provision was added
to enable this Court to review legislation prior to its effective date, so that these kinds of
problems could be avoided in the first place.31
29
My analysis here does not run afoul of Justice VIVIANO’s critiques of the “mischief
rule.” My analysis does not “first identify[] the problem . . . that [this constitutional
provision] was designed to remedy and then adopt[] a construction that will suppress the
problem and advance the remedy . . . .” Rather, I begin with the constitutional text, offer
what I believe is the best reading of it on its own, and supplement it with consideration of
the problem the convention was trying to solve. I believe Justice COOLEY would have
agreed with my approach, because—notwithstanding the remark from his “seminal
treatise” cited by Justice VIVIANO—Justice COOLEY also authored Mahaney. Moreover,
in light of Justice VIVIANO’s acknowledgment that this section of the Constitution “is not
a model of clarity,” it is not clear to me under what circumstances it would ever be
appropriate to consult or make practical use of historical context if we cannot do so here.
30
To the extent that the convention contemplated a need for prompt posteffectiveness
review of legislation, it was seemingly effectuated by maintaining our original
jurisdiction “to issue, hear and determine prerogative and remedial writs,” Const 1963,
art 6, § 4—such as the writ of mandamus that was at issue in Lockwood and over which
we had jurisdiction under Const 1908, art 7, § 4.
31
Justice MARKMAN concedes “that historical context may be relevant in interpreting a
constitutional provision,” but asserts that “even assuming that the ‘purpose’ of Const
1963, art 3, § 8 was to allow this Court to issue advisory opinions before the effective
date of legislation, this does not signify in any way that Const 1963, art 3, § 8 does not
also allow the Court to issue advisory opinions after the effective date.” Considering this
proposition standing alone, I would agree—the circumstances leading up to Lockwood
would not, on their own, be enough to conclude that we must only be able to issue
17
C. ADDRESS TO THE PEOPLE
Finally, the Address to the People also indicates that advisory opinions after the
effective date of legislation are impermissible. We have described the Address to the
People “as an authoritative contemporary construction of the constitutional provisions
that the citizens of Michigan were asked to vote on,” Mich Coalition of State Employee
Unions, 498 Mich. at 325, because “it was approved by the general convention . . . as an
explanation of the proposed constitution” and “was widely disseminated prior to adoption
of the constitution by vote of the people,” Regents of the Univ of Mich v Michigan, 395
Mich. 52, 60 (1975). In my view, the Address to the People confirms my interpretation of
the advisory-opinion process in two ways. First, it makes clear that Mr. Austin’s view of
the relationship between the advisory-opinion process and the sales/use-tax controversy
was not some personal idiosyncrasy. Rather, the Address said that “[a]n example of the
possible exercise of th[e advisory-opinion] section would have been the matter of the 4-
cent state use tax which was passed and later declared unconstitutional.” 2 Official
Record, Constitutional Convention 1961, p 3368. Second, and more importantly, the
Address to the People flatly states that Const 1963, art 3, § 8 “empowers the supreme
court to furnish advisory opinions . . . but only as to legislative acts that are already
passed and signed by the governor, and before they become effective.” Id. (emphasis
added). What was communicated to the people, then, was (1) that advisory opinions
could only be rendered “before [legislative acts] become effective,”32 and (2) that the
advisory opinions prior to the effective date of legislation. But I do not think these
circumstances must stand alone; they only supplement my read of the constitutional text,
where I begin my analysis. Moreover, in light of the Constitution’s silence in expressly
describing the parameters of when we can issue advisory opinions, if we cannot look to
this history to help make sense of that silence it is once again not clear to me under what
circumstances it would ever be appropriate to consult or make practical use of historical
context.
32
Justice VIVIANO “question[s] whether” the language I find relevant in the Address to
the People “is entitled to the elevated consideration normally given to the Address,”
given that it was not included in the proof of the Address that was mailed out to the
convention delegates in advance of its approval, but was rather “inserted along with
scores of other changes” that “were not mailed to the delegates until . . . four days before
the Address was approved.” I am, however, not aware of any principle of law that a
deliberative assembly’s action can be scrutinized for the amount of time spent
considering it. Because “[a]ll political power is inherent in the people,” Const 1963, art
1, § 1, it was the people themselves to whom the question of ratification was submitted,
Const 1963, sched § 15, and our principal inquiry is therefore how “ ‘the great mass of
the people themselves’ ” would understand the text, Mich Farm Bureau v Secretary of
State, 379 Mich. 387, 391 (1967), quoting May v Topping, 65 W Va 656, 660 (1909).
18
advisory-opinion process was meant to address the problem presented by Lockwood,
which was judicial review of a statute after its effective date. This resolves any
remaining doubt in my mind about how best to interpret both the constitutional text and
the inferences that should be drawn from the advisory-opinion process being a response
to Lockwood.33
D. HISTORICAL PRACTICE
On the other hand, and challenging my interpretation of Const 1963, art 3, § 8, is
the fact that on several occasions we have issued advisory opinions after the effective
date of the legislation being assessed. However, I find this past practice unpersuasive.
First, on at least one occasion, we appear to have ignored even an uncontroversial
constitutional timing requirement. In Advisory Opinion re Constitutionality of 1974 PA
242, 394 Mich. 41 (1975), we reviewed legislation which was given immediate effect on
the date of enactment: July 26, 1974. Where there is no gap between a statute’s date of
enactment and its effective date, there is seemingly no opportunity for the Legislature to
even ask (let alone for us to opine) after its enactment but before its effective date.34 I am
Therefore, the central issue is the effect the Address had on the electorate to whom it was
disseminated and which was invited to look to it in understanding the proposed
constitution they were voting on, and what the people were told was that advisory
opinions could only be rendered “before [legislative acts] become effective.”
33
I disagree with Justices MARKMAN and VIVIANO that the Address to the People
contradicts the constitutional text. The Constitution expressly allows the Legislature to
ask for an advisory opinion on a piece of legislation until its effective date, just as MCR
7.305(C) expressly establishes deadlines for filing an application for leave to appeal in
this Court. That the expression of those deadlines does not also recite the risk of, e.g.,
mootness being an obstacle to adjudication does not mean that dismissal on account of
mootness would be “inconsistent with [MCR 7.305(C)’s] actual language,” and I do not
think it contradicts the Constitution to conclude that similar obstacles to an advisory
opinion exist even if not recited in Const 1963, art 3, § 8. I would note that the Address
to the People’s expression of the meaning of Const 1963, art 3, § 8 is a sufficiently
natural gloss on the constitutional text that we echoed it in the previously quoted dicta
from Hathcock.
34
Our handling of 1975 PA 227 also deserves scrutiny. The Legislature asked us 10
questions about the statute, the first of which being whether it complied with the title-
object requirement of Const 1963, art 4, § 24. Prior to the law’s effective date, we said
that the law violated this constitutional requirement, Advisory Opinion on
Constitutionality of 1975 PA 227 (Question 1), 396 Mich. 123 (1976), but after the
effective date we went on to offer answers to the remaining questions, Advisory Opinion
on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich. 465 (1975). Because
19
disinclined to defer to our past practice if we disregarded the Constitution’s
uncontroversial requirements. Second, most of the remaining posteffectiveness advisory
opinions left the question of the timing of the request and the propriety of issuing a
posteffectiveness opinion unaddressed.35 This is certainly not a “ ‘principle[] of law
deliberately examined.’ ” Graves, 458 Mich. at 480 (citation omitted).
The one time we appear to have specifically concerned ourselves with whether it
was too late for us to issue an advisory opinion is in In re Request for Advisory Opinion
Regarding 2005 PA 71, 479 Mich. 1 (2007). In 1996, the Legislature had amended MCL
168.523 to require that voters present a photo ID in order to vote. Attorney General
Kelley, however, opined that this requirement was unconstitutional. OAG, 1997-1998,
No. 6,930, p 1 (January 29, 1997). Thereafter, it went unenforced. A decade later, the
Legislature adopted 2005 PA 71, which made certain other changes to MCL 168.523
the latter opinion came while the Legislature was drafting legislation that was responsive
to our first opinion, it seems to have been in substantial tension with the goal of this
Court not acting as legislative counsel.
35
See Advisory Opinion re Constitutionality of PA 1966, No 261 (On Reconsideration),
380 Mich. 736, rev’g 379 Mich. 55 (opinion issued on May 8, 1968, reversing opinion
issued on April 10, 1967, regarding statute that took effect on March 10, 1967); Advisory
Opinion re Constitutionality of PA 1966, No 346, 380 Mich. 554, 561 (1968) (opinion
issued on May 6, 1968, regarding statute that took effect on March 10, 1967); Advisory
Opinion re Constitutionality of PA 1970, No 100, 384 Mich. 82 (1970) (opinion issued on
October 5, 1970, regarding statute that took effect on September 1, 1970); Advisory
Opinion re Constitutionality of 1972 PA 258, 389 Mich. 659 (1973) (opinion issued on
July 24, 1973, regarding statute that took effect on January 1, 1973); Advisory Opinion re
Constitutionality of 1973 PA 1 & 2, 390 Mich. 166 (1973) (opinion issued on October 17,
1973, regarding statutes that took effect on March 13, 1973); Advisory Opinion on
Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich. 465 (1976) (opinion issued
May 21, 1976, regarding statute that took effect on March 31, 1976); Advisory Opinion
on Constitutionality of 1976 PA 240, 400 Mich. 311, explaining 400 Mich. 175 (1977)
(opinion issued June 10, 1977, explaining order entered May 25, 1977, regarding statute
that took effect on March 31, 1977); Advisory Opinion on Constitutionality of 1975 PA
301, 400 Mich. 270 (1977) (opinion issued June 10, 1977, regarding statute that took
effect on March 31, 1976); Advisory Opinion on Constitutionality of 1976 PA 295, 1976
PA 297, 401 Mich. 686 (1977) (opinion issued November 7, 1977, regarding legislation
that took effect on November 15, 1976); Advisory Opinion on Constitutionality of 1982
PA 47, 418 Mich. 49 (1983) (opinion issued November 23, 1983, regarding legislation
that took effect on September 19, 1982); Advisory Opinion on Constitutionality of 1986
PA 281, 430 Mich. 93 (1988) (opinion issued March 22, 1988, regarding legislation that
took effect on February 1, 1987).
20
with an effective date of January 1, 2007. On February 22, 2006, the House of
Representatives asked for an advisory opinion as to the constitutionality of the original
photo ID requirement. 2006 HR 199. We granted the request for an opinion and asked
Attorney General Michael Cox to arrange for arguing both sides of the issue. In re
Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 474 Mich. 1230
(2006). In those submissions, “the opposing Attorney General claim[ed] that this Court
lack[ed] the constitutional authority to issue an advisory opinion in this case because the
request for the advisory opinion was untimely.” In re 2005 PA 71, 479 Mich at 12. We
characterized the opposing Attorney General’s position as being “that the effective date
of 2005 PA 71 was March 31, 1997, the effective date of 1996 PA 583.” Id. We rejected
that argument, because “the effective date of 2005 PA 71 was January 1, 2007.” Id. at
13. It was in that context that we said that, “[b]ecause the House of Representatives
requested an advisory opinion well before that date, this Court indisputably ha[d]
jurisdiction . . . to render an advisory opinion in this matter.” Id. We ultimately issued
an opinion holding 2005 PA 71 to be constitutional on July 18, 2007, well after its
January 1, 2007 effective date.
It seems apparent to me that In re 2005 PA 71 does not answer the question at
hand. The issue presented in that case ultimately related to how to handle amendments to
pre-existing statutes; our Constitution requires that “[t]he section or sections of the act
altered or amended shall be re-enacted and published at length,” Const 1963, art 4, § 25,
so the question was whether, in “re-enact[ing] and publish[ing] [them] at length” while
making an unrelated change, the Legislature could give itself another opportunity to ask
for an advisory opinion. Whether our resolution of that question was right or wrong,36
we simply did not grapple with the current question, which is whether advisory opinions
can be issued after the effective date of the legislation. “[A]ll that is necessary for a
decision to be authoritative is to show application of the judicial mind to the subject.”
Detroit v Mich Pub Utilities Comm, 288 Mich. 267, 299 (1939). I do not see where “the
judicial mind” was “applied” to this issue in In re 2005 PA 71, and I therefore do not
consider it authoritative. To the extent that it has been our practice to issue
posteffectiveness advisory opinions, I would “refuse to perpetuate the error” of doing so.
Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 219 (2007).
III. LOOKING TO THE FUTURE
Although it is my view that this Court lacks jurisdiction to issue an advisory
opinion after the effective date of the legislation being reviewed, my position lacks
36
While not raised by the dissents in In re 2005 PA 71, it has been argued that “the
advisory opinion was neither proper nor permissible” because the language being
reviewed was not original to 2005 PA 71, but rather had been enacted and taken effect in
1996. Doubtful and Perilous Experiment, p 178.
21
majority support. So long as it is not the law that this Court cannot issue an advisory
opinion under such circumstances, I do not anticipate refusing to participate in the future
solely on the basis of my personal view that the Court cannot do so. However, even if
my view of the jurisdictional question is not the law, the Legislature should be aware that
this will inform my judgment about when it is appropriate for this Court to exercise its
discretion to issue an advisory opinion. Because I do not think we should issue advisory
opinions after the effective date of the legislation being scrutinized, I believe the
Legislature should make every effort to give us a reasonable amount of time prior to the
effective date to issue an opinion.37
The Legislature did not go to such efforts in this matter. The relevant legislation
was passed by the Legislature on December 4, 2018. See 2018 Senate Journal 1956–
1957 (No. 74, December 4, 2018). At that time, the Legislature could have extended the
effective date if it wanted to. See Gale v Oakland Co Bd of Supervisors, 260 Mich. 399,
403 (1932) (“[F]requently laws are made effective long after the 90 days provided for by
the Constitution.”); OAG, 1937-1938, p 111, at 112 (October 7, 1937) (“The rule is well
settled that where a constitution provides . . . that all statutes shall go into effect a
designated number of days after the adjournment of the session at which same are passed,
the terms of such a constitution are not violated by a provision of the legislature that an
37
Justice MARKMAN notes, correctly, that my view of our jurisdiction makes it
impossible for “the Legislature to know how much time in advance of the effective date
will be viewed by future members of this Court as sufficient[.]” Given that advisory
opinions are purely discretionary on our part, however, I do not believe this adds
meaningful uncertainty to the Legislature’s deliberations. Under current law, the
Legislature must, as Justice MARKMAN expresses it, “engage in . . . speculation” as to
whether we will issue an opinion, and—had I not publicized my position—I would have
been free to silently allow my view of our jurisdiction to inform my vote on whether to
grant advisory-opinion requests in the future. I am simply publicizing my reasons for not
issuing an opinion in light of Justice ZAHRA’s forceful discussion of the importance of
the issues at hand. I also question Justice MARKMAN’s assertion that we have a
“(discretionary) constitutional responsibility to furnish advisory opinions when these
have been appropriately requested . . . .” Our advisory-opinion jurisprudence has never
expressed any responsibility to opine, instead emphasizing that “the intent was for
sparing resort to this mechanism” and that advisory opinions are issued “at the discretion
of the Supreme Court.” Request for Advisory Opinion on 1977 PA 108, 402 Mich at 86.
Indeed, when the Governor made a request for an advisory opinion some six months after
we had rejected the Legislature’s request for an opinion as to the same statute, we had no
compunction about once again rejecting the request, notwithstanding the even stronger
signal that had been sent by our coordinate branches of government about the desire for
an opinion. See Request for Advisory Opinion on the Constitutionality of 1979 PA 57,
407 Mich. 506 (1980).
22
Act shall take effect at a date subsequent to the specified number of days.”); Mayer,
Effective Date of Michigan Public Acts, 56 Mich St BJ 116, 116 (1977) (“In general, a
1976 public act which was not given immediate effect will take effect on March 31,
1977, unless the act contains a specified effective date after March 31, 1977. In that case
the act takes effect on that specified date.”).38 It did not. The legislation was signed into
law by the Governor on December 13, 2018, and filed with the Secretary of State the
following day. See 2018 Senate Journal 2376 (No. 81, December 19, 2018). The
Legislature could have requested an advisory opinion at that time. It did not. Instead, it
did not request an advisory opinion from this Court for another 10 weeks, with the House
of Representatives’ request arriving only five weeks before this legislation’s effective
date. Under these circumstances, I would be disinclined to exercise this Court’s
discretion to issue an advisory opinion even if I felt that we had jurisdiction to do so.39
IV. CONCLUSION
I believe there are several reasons to conclude that we lack jurisdiction to issue an
advisory opinion after the legislation being scrutinized has taken effect. First, I read the
constitutional text as making two suggestions: (1) that the “effective date” deadline of
Const 1963, art 3, § 8 is a structural element reflecting the expectation that we render
advice to the Legislature before legislation takes effect, so that the Legislature can act on
that advice before an injury occurs; and (2) that we are granted only “the judicial power,”
and limiting advisory opinions prior to the effective date of legislation is the best
reconciliation of our ordinary exercise of judicial power with the implied and limited
exception to that power that is the advisory-opinion process. Second, to the extent that
the Michigan Constitution itself is less than perfectly clear on this, both the Address to
the People and the convention debates show that the advisory-opinion process was added
38
See also Price v Hopkin, 13 Mich. 318 (1865). The legislation in Price, 1863 PA 227,
was signed into law on March 20, 1863, and was not given immediate effect by the
Legislature but had an effective date of January 1, 1864. See 1863 House Journal 1215-
1216; 1863 Senate Journal 820-821. Our Constitution at the time contained a similar
requirement that legislation not “take effect or be in force until the expiration of ninety
days from the end of the session at which the same is passed” in the absence of a ⅔ vote,
Const 1850, art 4, § 20, but that session ended on March 23, meaning that 90 days after
the end of the session was well before January 1, yet we had no objection to the
legislation taking effect on January 1st.
39
This sort of equitable analysis is particularly applicable when it is the Legislature
requesting an advisory opinion, given that it is the Legislature that could adjust the
effective date. Although my view of the jurisdictional issue would not change, my view
of the equities might if it were the Governor rather than the Legislature making the
request for an advisory opinion, as allowed by Const 1963, art 3, § 8.
23
specifically to address problems akin to the sales/use-tax problem confronted in
Lockwood, such that the Legislature could fix an unconstitutional law before it took effect
to avoid implementing an unconstitutional law and ringing a bell that cannot be unrung.
Third, the Address to the People squarely informed the voters who ratified the Michigan
Constitution of 1963 that Const 1963, art 3, § 8 conferred on us the power to review the
constitutionality of legislative acts, but “only . . . before they become effective.”40
I would, moreover, note that the laws at issue here are very similar to the sort
scrutinized in Lockwood—untold numbers of hours have been worked in Michigan since
these laws took effect on March 29, just as untold numbers of sales occurred with the
unconstitutional sales tax applied to them. An advisory opinion at this point might
introduce more confusion, not less, precisely because—were the laws held
unconstitutional—the effect of such a pronouncement would be highly uncertain. At
least as to those hours worked prior to our opinion, there would be nothing the
Legislature could do to fix the constitutional defect; yet “our conclusions could not be
made effective by final judgment, decree, and process” in the absence of a discrete injury
suffered by actual parties. In such a circumstance, where our advice cannot be heeded
but we have no actual solution we can provide in the form of a court order or judgment, I
conclude that we lack jurisdiction to act—regardless of whether the amount of time that
has passed is 1 day, or 100 days. Therefore, I concur in the Court’s order denying the
request for an opinion.41
40
Justice MARKMAN asserts that “historical context is not invariably relevant, much less
dispositive” when “interpreting a constitutional provision . . . .” I agree, both in general
and in this matter. To the extent that his remark is meant to suggest that I do believe it is
dispositive here, that is incorrect—as noted, I think the best reading of the constitutional
text alone supports my view, but I am even more confident in light of the historical
context and constitutional convention materials.
41
Justice MARKMAN decries the time this Court has taken in resolving this matter and
alleges that, “had the public ever anticipated a delay of this length in responding to the
requests for an advisory opinion, a private party would surely have already challenged
these amendments in pursuit of a traditional ‘case or controversy.’ ” Because “the
public” does not speak with one voice, it is not clear to me how the pendency of this
request for an advisory opinion has interfered with anyone filing such a suit should they
so desire. In any event, I disagree that there has been an unreasonable delay. Our policy
is that “[r]equests for advisory opinions receive expedited review by the Court given their
time sensitive nature.” MSC IOP 7.308(B)(3). Consistent with this policy, this matter
was argued only five months after the request was made, at a special July session of this
Court—not a month in which we ordinarily hear argument—rather than waiting until the
next regular session of the Court in October, see MCR 7.301(B), and will be disposed of
in less than a year. This is obviously far less time than we take on our ordinary
discretionary docket, and it is less time than we took in In re 2005 PA 71, in which the
24
MCCORMACK, C.J., joins the statement of CLEMENT, J.
CAVANAGH, J. (concurring).
I concur in the order denying the Legislature’s request for an advisory opinion.
Although granted the constitutional authority to do so, this Court rarely exercises its
discretion to issue an advisory opinion. I believe that the most compelling reason for this
is that advisory opinions are a departure from this Court’s traditional role. They are
neither decisions of this Court nor binding authority on this Court or on any other branch
of government. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441,
460-461 n 1 (1973). “Requests for advisory opinions are an extraordinary exception to
the typical process that brings cases to this Court. Absent are parties who have an actual
stake in the outcome and a record fully developed in our lower courts.” In re 2002 PA 48
(House of Representatives’ Request for an Advisory Opinion), 467 Mich. 1203, 1203
(2002).
I find Justice CLEMENT’s view of this Court’s jurisdiction compelling, and I
believe the textual clues and history Justice CLEMENT discusses counsel against
exercising any discretion we have to issue an advisory opinion under the circumstances
presented here. The Legislature’s requests for an advisory opinion as to the
constitutionality of 2018 PA 368 and 2018 PA 369 were made before the laws’ effective
date but not, I believe, sufficiently in advance of the effective date to allow this Court a
advisory opinion was issued nearly 15 months after the request was made and eight
months after it was argued. It is true that we took a little less than six months to issue an
advisory opinion in In re Request for Advisory Opinion Regarding Constitutionality of
2011 PA 38, 490 Mich. 295 (2011)—apparently because that opinion was expedited so
that it could be issued before the statute’s effective date. Justice MARKMAN distinguishes
this situation from In re 2005 PA 71 because there we issued an opinion, while here we
did not. While true, I would note that within 40 days of receiving this request we had
ordered that it be briefed and argued, which left the matter pending idly for less time than
in In re Request for Advisory Opinion Regarding Constitutionality of 2016 PA 249, 500
Mich. 875 (2016) (84 days); In re Request for Advisory Opinion Regarding
Constitutionality of 2012 PA 348 and 2014 PA 349, 494 Mich. 876 (2013) (158 days); In
re Request for Advisory Opinion Regarding Constitutionality of 2002 PA 678, 468 Mich.
1213 (2003) (46 days); In re 2002 PA 48 (House of Representatives’ Request for an
Advisory Opinion), 467 Mich. 1203 (2002) (152 days); or Request for Advisory Opinion
on Constitutionality of 1989 PA 117, 435 Mich. 1243 (121 days). I trust he would prefer
that we heard this matter than not, and with the delays that are a natural consequence of
the heightened scrutiny that argued matters receive, I believe the Court is acting with
appropriate urgency.
25
meaningful opportunity to carefully consider and decide the complex constitutional issues
raised. Had the Legislature specified a later effective date for the laws, rather than
allowing the laws to take effect sine die, it could have afforded the Court sufficient time
to issue a decision prior to the effective date.42 In fact, the requests could have been
made as soon as the laws were enacted.43 When the Senate and the House of
Representatives requested an advisory opinion on February 20 and 21, 2019, respectively,
this Court had just over one month to decide the complex constitutional question of
whether the Court could and should exercise its discretion under Const 1963, art 3, § 8
and, if so, whether the “adopt-and-amend procedure” used by the Legislature was
permissible under Const 1963, art 2, § 9.44 Regardless of this Court’s jurisdiction to issue
an advisory opinion after the effective date of these acts, it is clear that the practical value
to Michigan’s citizens of such an opinion is much greater if it is issued before the laws
become effective. I believe the diminished practical value of an opinion now cautions
against exercise of the Court’s discretion to issue an opinion.
I respectfully disagree with Justice ZAHRA that, absent this Court’s rendering an
advisory opinion in the manner and form presented by this case, the State’s economy will
suffer unique uncertainty and employers will face a quandary about whether to follow the
statutes as amended or to follow the preamendment version of the laws. While there is
clearly much to debate about which version of the statutes should be the law, there is no
genuine confusion about which version of the statutes is the law today. Michigan’s
citizens follow the law. And they will, undoubtedly, continue to follow the existing laws
unless and until those laws are held to be unconstitutional by order of this Court in an
actual case or controversy. An advisory opinion from this Court—whether issued today
42
2018 PA 368 and 2018 PA 369 were signed into law on December 13, 2018. Because
the Legislature did not establish a specific effective date for the laws, both took effect on
the 91st day after the 99th Legislature adjourned sine die. See Frey v Dep’t of Mgt &
Budget, 429 Mich. 315, 340 (1987). Accordingly, the effective date of the laws was
March 29, 2019.
43
The 100th Legislature convened on January 9, 2019. On February 20, 2019, the House
of Representatives adopted a resolution requesting an advisory opinion. The Senate
adopted a similar resolution the following day. Those resolutions requesting an advisory
opinion on the constitutionality of 2018 PA 368 and 2018 PA 369 were not filed with this
Court until February 22, 2019, and March 1, 2019, respectively.
44
The complexity of the issues involved is evidenced by the more than 20 briefs that
were filed for consideration by this Court. Indeed, the question of whether this Court
possessed jurisdiction under Const 1963, art 3, § 8 was not addressed by the parties until
it was raised by this Court in its July 5, 2019 order.
26
or before March 29, 2019—could not effect any real remedy to any citizen, be they
employee or employer, actually injured by the contested laws.45
Finally, given that the Legislature’s use of the adopt-and-amend procedure is
argued to be both controversial and political, I do not find it surprising that the request for
an advisory opinion is supported by members of both political parties and by proponents
and opponents of the initiatives. In my view, “the current divisive political climate in
which we find our state and nation” referred to in Justice ZAHRA’s dissent further
cautions against, rather than in favor of, this Court entering into the fray absent an actual
case or controversy.
I concur in the Court’s order denying the Legislature’s requests.
BERNSTEIN, J., joins the statement of CAVANAGH, J.
MARKMAN, J. (dissenting).
Both the Michigan House of Representatives and the Michigan Senate have
requested this Court’s guidance concerning the constitutionality of 2018 PA 368, which
amended the Improved Workforce Opportunity Wage Act, and 2018 PA 369, which
amended the Earned Sick Time Act. Specifically, they have each requested that we issue
an opinion addressing whether Const 1963, art 2, § 9 permits the Legislature to enact an
initiative petition into law and then amend that law during the same legislative session.
This is without a doubt an “important question[] of law” and one presented on a “solemn
occasion[].” Const 1963, art 3, § 8. And the House and Senate made their requests “after
[the legislation] ha[d] been enacted into law but before its effective date.” Id.; see also In
re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1,
13 (2007) (“Because the House of Representatives requested an advisory opinion well
before [the effective] date, this Court indisputably has jurisdiction under art 3, § 8 to
render an advisory opinion in this matter.”). Thus, this Court possesses the authority--
and, in my judgment, the reasonable obligation-- to answer the question before it. Not
45
I respectfully disagree with Justice MARKMAN that uncertainty over “which version of
[these statutes] is going to be the law tomorrow” is a compelling reason for this Court to
issue an advisory opinion in this matter. The constitutionality of almost every law is
unsettled until this Court opines on the issue, and that uncertainty is actually part of how
the law should develop. When this Court does opine on the constitutionality of a
particular law, it does so in a case on review from lower courts, with a fully developed
factual record and actual litigants who have suffered actual harm and for whom an actual
remedy can be provided. While there may be some circumstances in which an advisory
opinion is warranted despite the absence of an actual case or controversy, I do not believe
those circumstances are presented here.
27
only should we answer the question as a matter of comity to the Legislature, but also
because it presents a matter of substantial importance to the people of this state,
occasioning in particular considerable uncertainty and confusion among large numbers of
employers and employees of the state.46
46
Justice CAVANAGH questions whether there is any genuine confusion and uncertainty
concerning the state of the law. While she may conceivably be correct that “there is no
genuine confusion about which version of the statutes is the law today,” there is certainly
confusion and uncertainty regarding which version is going to be the law tomorrow.
Moreover, the people of this state, and their elected representatives, have a legitimate
interest in knowing, and a right to know, which version of the statutes is going to be the
law tomorrow; this Court could usefully have provided such guidance; and we have
specifically been asked by a wide variety of organizations, including both houses of the
Legislature, to afford this guidance. And yet we have chosen to withhold such guidance.
Justice CAVANAGH asserts that uncertainty over which version of these statutes is going
to be the law tomorrow is not a compelling reason for this Court to issue an advisory
opinion because “[t]he constitutionality of almost every law is unsettled until this Court
opines on the issue . . . .” I disagree. Laws are presumed to be constitutional. People v
Skinner, 502 Mich. 89, 111 (2018). They are not, as Justice CAVANAGH asserts,
“unsettled” until they receive this Court’s blessing. This case is distinctive because there
are two versions of each of the statutes at issue; there are conflicting Attorney General
opinions regarding the constitutionality of the adopt-and-amend procedure utilized by the
Legislature in enacting these laws; and the Legislature has requested this Court to decide
which of these two Attorney General opinions is correct, a request that has been
supported by numerous different organizations. Justice CAVANAGH contends that
“[w]hen this Court does opine on the constitutionality of a particular law, it does so in a
case on review from lower courts, with a fully developed factual record and actual
litigants who have suffered actual harm and for whom an actual remedy can be
provided.” However, the ratifiers of the 1963 Constitution have provided for an
additional avenue of relief when there are “important questions of law upon solemn
occasions as to the constitutionality of legislation,” Const 1963, art 3, § 8-- an advisory
opinion-- and Justice CAVANAGH has not explained why this is not just such an occasion.
Justice CAVANAGH also asserts that an advisory opinion issued after the effective date has
a “diminished practical value” compared to one issued before the effective date. Even
assuming this to be true, a post-effective-date advisory opinion would nonetheless have
considerably greater “practical value” than an opinion months or even years further down
the road, which is the practical alternative. Perhaps even more to the point, the
Legislature and the amici are as aware as any member of this Court that an advisory
opinion almost certainly could not have been rendered before the effective date and yet
nonetheless they each sought an advisory opinion and presumably believed, contrary to
Justice CAVANAGH, that such an opinion would still have “practical value.” She further
28
While I respectfully differ with the Court in its decision not to issue the requested
advisory opinion, I find far more troubling the Court’s utter lack of urgency in
communicating a response to the Legislature and to the people. It has now been 300 days
since the request for an advisory opinion was first made to this Court and 155 days since
oral arguments were heard.47 Each day that passes, the confusion and uncertainty persist
and, should the Court at some later juncture eventually determine the laws in question to
be unconstitutional, the question of a remedy will have become increasingly more
difficult. Moreover, had the public ever anticipated a delay of this length in responding
to the requests for an advisory opinion, a private party would surely have already
challenged these amendments in pursuit of a traditional “case or controversy.” So, rather
than expediting an answer to a question that can only be answered by this Court-- which
is the very purpose of an advisory opinion-- this Court has needlessly delayed providing
an answer, thus both paralyzing the legal process and confounding employers and
asserts in justification of her position that the sheer volume of briefs filed on behalf of the
requests for an advisory opinion evidences the “complexity” of the issues involved and
for that reason argues against an opinion. Respectfully, I believe that the volume of
filings far better evidences the breadth of the perspective that there would have been
considerable “practical value” to even a post-effective-date advisory opinion from this
Court.
Justice CLEMENT indicates that an advisory opinion at this point may “introduce more
confusion, not less, precisely because—were the laws held unconstitutional—the effect of
such a pronouncement would be highly uncertain.” All quite interesting, but to repeat,
the Legislature has affirmatively sought our guidance on the constitutionality of two
legislative acts. By that action, the Legislature was presumably of the view that this
Court could have clarified matters rather than generated “confusion,” and that it was
likely to have accepted our ultimate guidance. Indeed, I am unaware of any occasion on
which this Court has issued an advisory opinion concluding that legislation was
unconstitutional in which the Legislature has not taken that guidance and promptly
remedied the problem.
47
Justice CLEMENT states that we have resolved this matter in “less time than we took in
In re 2005 PA 71, in which the advisory opinion was issued nearly 15 months after the
request was made and eight months after it was argued.” Perhaps, however, a relevant
distinction between the two matters is that in In re 2005 PA 71, we granted the request
for an advisory opinion and actually answered the question presented in a 104-page
opinion. Here, it has taken the Court well over nine months to deny the Legislature’s
request.
29
employees in search of the guidance that might have been afforded them. 48 Because I
would have answered the issue presented, and would have done so in a reasonably timely
manner, I dissent.
RESPONSE TO CONCURRENCES
Justice CLEMENT has written a highly thoughtful concurrence in which she
concludes that this Court lacks the authority to issue an advisory opinion after the
effective date of the legislation at issue. And Justice CAVANAGH has written a separate
concurrence in which she indicates that she finds Justice CLEMENT’s view “compelling.”
Although Justice CAVANAGH does not indicate whether she ultimately agrees with Justice
CLEMENT’s conclusion, she does indicate that she believes that the “textual clues and
history Justice CLEMENT discusses counsel against exercising any discretion we have to
issue an advisory opinion under the circumstances presented here.” I respectfully
disagree with both Justice CLEMENT and Justice CAVANAGH.
A. TEXT AND PRECEDENT
Most importantly, I disagree because the language of Const 1963, art 3, § 8 does
not contain the time limitation asserted by Justice CLEMENT. Instead, the only time
limitation contained in this provision is that the Legislature must undertake its request for
an advisory opinion “after [the legislation at issue] has been enacted into law but before
its effective date.” Article 3, § 8 does not contain any time limitation as to this Court’s
authority to issue an advisory opinion in response to a timely received request. As we
have explained, “it is to the words of the statute itself that a citizen first looks for
guidance in directing his actions.” Robinson v Detroit, 462 Mich. 439, 467 (2000).
Similarly, it is to the words of the constitution that the Legislature first looks for guidance
in directing its actions. “This is the essence of the rule of law: to know in advance what
the rules of society are.” Id. “Thus, if the words of the [law] are clear, the actor should
be able to expect . . . that [these] will be carried out by all in society, including the
courts.” Id. The Legislature has presumably looked to the words of Const 1963, art 3,
§ 8 and recognized that this provision requires only that the Legislature undertake its
request for an advisory opinion after the enactment of the legislation, but before its
effective date, and the Legislature-- altogether reasonably-- has relied upon this clear and
48
Justice CLEMENT contends that the “advisory-opinion process was not intended to
provide an expeditious answer,” but instead “to enable review of a statute before any
injury has been suffered.” Providing an answer “before any injury has been suffered,”
i.e., before the effective date of the legislation, would indeed also have provided an
“expeditious answer.” Accordingly, we agree that the purpose of an advisory opinion is
to provide an “expeditious answer.” She, however, believes that the purpose is a
considerably narrower one than do I, to provide a singular kind of “expeditious answer”--
one occurring prior to the effective date of the legislation.
30
unambiguous language in reaching the conclusion that this was the only applicable time
restriction. In other words, it looked to the constitutional charter of this state and acted in
a manner that was faithful to that charter. Now, two members of this Court are
instructing the Legislature that, unfortunately, there is an additional and applicable time
restriction-- one found nowhere within the language of Const 1963, art 3, § 8 or
anywhere else within our Constitution.49
49
Justice CLEMENT contends that we should not be concerned that her new time
restriction is found nowhere within our state’s Constitution because, although “[t]he word
‘moot’ [also] does not appear anywhere in the Constitution,” we nevertheless dismiss
actions on the grounds of mootness. Comparing her newly devised time restriction
concerning advisory opinions with longstanding understandings of mootness (and
equally, if she had chosen to do so, with similar judicial doctrines such as standing,
ripeness, and justiciability) is comparing apples to oranges. As Justice CLEMENT herself
acknowledges, her new time limitation “lacks majority support” and thus is not
“established,” let alone “well established,” legal doctrine. Yet “[i]t is well established
that a court will not decide moot issues.” People v Richmond, 486 Mich. 29, 34 (2010)
(emphasis added). Indeed, this Court has adhered to this principle of law for more than a
century. See, e.g., Street R Co of E Saginaw v Wildman, 58 Mich. 286 (1885). The
principle that this Court will not decide moot issues is derived from the constitutional
requirement that the judiciary is to exercise the “judicial power,” Const 1963, art 6, § 1,
and only the “judicial power,” Const 1963, art 3, § 2. This power has long been defined
as “the right to determine actual controversies arising between adverse litigants,” Anway
v Grand Rapids R Co, 211 Mich. 592, 616 (1920) (quotation marks and citation omitted),
which is why the ratifiers of the 1963 Constitution were obligated to add art 3, § 8 in
order to invest this Court with the authority to issue advisory opinions-- an authority not
otherwise encompassed within the “judicial power.” When there is no longer an actual
and pending controversy between the parties, the matter at issue has become moot, and
deciding a moot issue “is not an exercise of judicial power.” Id. at 615 (quotation marks
and citation omitted). In other words, although the word “moot” may not appear
anywhere in the Constitution, the term “judicial power” does appear, and it is well
established that this term encompasses the principle that this Court will not decide moot
issues. On the other hand, nowhere in the Constitution does it say that this Court cannot
issue an advisory opinion after the effective date of legislation, and it is hardly
“established,” let alone “well established,” that language requiring the Legislature to
request an advisory opinion before the effective date of the legislation somehow
encompasses the principle that this Court cannot issue an advisory opinion after the
effective date of the legislation.
Furthermore, there is no grounds for Justice CLEMENT’s assertion that I am somehow
“fault[ing]” her legal argument “for its novelty.” “Novel” arguments, as with any other,
should be assessed on the basis of their merits, and that is what I do here in suggesting
31
that her analogizing of her arguments in this case to those made in support of the doctrine
of mootness are entirely misplaced.
Nor is Justice CLEMENT’s newly devised rule even a reasonably logical implication of the
language of art 3, § 8. That is, just because the ratifiers of the 1963 Constitution imposed
a requirement on the Legislature to request an advisory opinion prior to the effective date
of the legislation does not suggest in any way that the ratifiers also intended to impose a
requirement on this Court to issue an advisory opinion prior to the effective date of
legislation. Justice CLEMENT asks why the ratifiers would conceivably have chosen to
impose this requirement on the Legislature, but not this Court. Although there is no
obligation on the part of this Court either to raise or to answer this question, the answer
nonetheless is quite simple-- it is far more difficult for this Court to issue an advisory
opinion prior to the effective date of legislation than it is for the Legislature merely to
request such an opinion. They also presumably trusted that this Court would act in a
timely fashion with regard to such requests and thus did not believe that it was necessary
to impose a time limitation upon this Court.
Justice CLEMENT “struggle[s] to see the logic of accepting that all of the other
requirements of the advisory-opinion process apply to both the Legislature and this
Court, but that [the timing] requirement, uniquely, applies only to the Legislature.”
However, again she is comparing apples to oranges. All of these “other requirements”--
that the request for an advisory opinion relate to an “important question of law,” that it be
submitted upon a “solemn occasion,” and that it concern “the constitutionality of
legislation”-- pertain to the substance of the question asked, and each requirement is
obviously unaffected in any way by whether the question is being presented by the
Legislature or being received by this Court; after all, it is exactly the same question that is
at issue in either instance. By contrast, the timing requirement, unlike each of the “other
requirements,” is a wholly procedural requirement, and there is no particular reason why
the same timing requirement should apply to the presenting and the receiving public
bodies. That is, while it is perfectly logical to imply from the explicit requirement of the
Constitution that the Legislature’s request must pertain to “important questions of law
upon solemn occasions as to the constitutionality of legislation” that this Court’s
responsive opinion must also pertain to “important questions of law upon solemn
occasions as to the constitutionality of legislation,” it is not equally logical to imply from
the explicit requirement that the “Legislature” must request an advisory opinion before
the effective date of the legislation that this Court must also issue its advisory opinion
before the same date. In short, it is entirely logical-- indeed self-evident-- that the same
substantive characterizations and preconditions would be applicable to the question
whether the process is in the hands of the Legislature or the Court; however, no similar
logic would apply to the procedural requirement here in dispute, for the Legislature and
this Court stand in considerably different circumstances, not only on the basis of the
32
Not only is this additional time restriction absent from the language of the
Constitution, but it is also absent from our state’s constitutional practice because this
Court has on numerous occasions issued advisory opinions after the effective date of the
legislation at issue. See, e.g., In re Request for Advisory Opinion Regarding 2005 PA 71,
479 Mich. 1; Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich. 93 (1988);
Advisory Opinion on Constitutionality of 1975 PA 301, 400 Mich. 270 (1977); Advisory
Opinion re Constitutionality of PA 1966, No 346, 380 Mich. 554 (1968); Advisory
Opinion re Constitutionality of PA 1966, No 261, 379 Mich. 55 (1967), rev’d on other
grounds 380 Mich. 736 (1968).50 Indeed, in In re Request for Advisory Opinion
Regarding 2005 PA 71, 479 Mich at 13, this Court stated explicitly, “Because the House
of Representatives requested an advisory opinion well before [the effective] date, this
Court indisputably has jurisdiction under art 3, § 8 to render an advisory opinion in this
matter.” Even in the present case, in which this Court has received numerous amicus
briefs, nobody has argued that this Court lacked the authority to issue an advisory opinion
after the effective date until we raised the issue on our own and mandated supplemental
briefing by the Attorney General on both sides of the issue. Thus, despite this additional
time restriction being located nowhere within the Constitution and being altogether
inconsistent with this Court’s own prior practices, some members of this Court are
constitutional text but also on the basis of the practical obligations imposed upon each by
the Constitution.
50
Justice CLEMENT asserts that this Court has made statements in dicta in two cases--
Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395 Mich. 148, 149
(1975), and Wayne Co v Hathcock, 471 Mich. 445, 485 n 98 (2004)-- and that I have
made a statement in a concurring opinion, Woodman v Kera LLC, 486 Mich. 228, 264 n 2
(2010), each of which may be read to suggest that an opinion from this Court must be
issued before the effective date of legislation. While, in my judgment, these statements
are somewhat less clear than she asserts, they are nonetheless sufficiently imprecise to
render them susceptible to Justice CLEMENT’s characterization, as they fail carefully to
distinguish between the Legislature’s request for an advisory opinion and this Court’s
response thereto by failing to incorporate fully within their excerpted constitutional
language surrounding words necessary to a complete and contextual understanding of
their meaning. However, none of these statements can be understood as anything but
dictum because none of these cases pertained in any way to our authority to issue an
advisory opinion after the effective date. Moreover, two of the three did not pertain to
any aspect of procedure concerning advisory opinions or even to a request for an advisory
opinion, and thus did not contain a single word of analysis concerning Const 1963, art 3,
§ 8. Perhaps most significantly, by the time these statements were issued, this Court had
already, and without objection from any justice, exercised its authority on numerous
occasions to issue advisory opinions after the effective date of the legislation.
33
denying the present request for an advisory opinion on the grounds that it does not satisfy
this limitation.
The Legislature obviously could not have foreseen the imposition of this new
restriction when it proffered the request at issue here, and future Legislatures will now
have an equally difficult time determining when exactly their requests must be proffered
because all we are told by the concurring justices is that these must be made sufficiently
in advance of the effective date to allow this Court an opportunity to consider and decide
the constitutional issues raised, and to issue an opinion before the effective date. How is
the Legislature to know how much time in advance of the effective date will be viewed
by future members of this Court as sufficient? Because nothing in the actual text of the
Constitution requires the Legislature to engage in such speculation, I would not impose
this or any other additional obligation upon the Legislature. Again, the only time
restriction found within Const 1963, art 3, § 8 is that the Legislature must make its
request “after [the legislation] has been enacted into law but before its effective date.”
That Const 1963, art 3, § 8 contains this restriction and no other is itself meaningful
because “the express mention . . . of one thing implies the exclusion of other similar
things,” Bradley v Saranac Community Schs Bd of Ed, 455 Mich. 285, 298 (1997), mod
on other grounds by Mich Fed of Teachers v Univ of Mich, 481 Mich. 657 (2008), and
“[w]e cannot read into the [Constitution] what is not there,” AFSCME v Detroit, 468
Mich. 388, 412 (2003).
B. PURPOSE
Justice CLEMENT concludes that the “purpose sought to be accomplished” by
Const 1963, art 3, § 8 is “to enable review of a statute before any injury has been
suffered,” i.e., before the effective date of the statute. She explains at length her belief
that the provision was “added in response” to Lockwood v Comm’r of Revenue, 357 Mich.
517, 545 (1959), an opinion of this Court that held that the 1959 use-tax amendment
represented an unconstitutional effort to evade the constitutional sales tax limit after
several millions of dollars of tax revenue had been unconstitutionally collected. While I
do not question this historical context, or indeed that historical context may be relevant in
interpreting a constitutional provision, such context is not invariably relevant, much less
dispositive, in particular where such context is inconsistent with the constitutional text.
That is, while this context might well suggest that a “purpose” of Const 1963, art 3, § 8
was to enable this Court to issue an advisory opinion before the effective date of
legislation, i.e., “to enable review of a statute before any injury has been suffered” or,
even more specifically, “to prevent the collection of unconstitutional taxes in the first
place,” this is not the equivalent of signifying that such is the exclusive “purpose” to be
served. Indeed, “ ‘ “the [constitutional] remedy often extends beyond the particular act or
mischief which first suggested the necessity of the law.” ’ ” Dist of Columbia v Heller,
554 U.S. 570, 578 (2008) (citations omitted); see also id. at 599 (noting that although the
purpose of the Second Amendment was “to prevent elimination of the [state] militia,” it
34
also by its terms protects the right to possess a firearm “as an individual right
unconnected with militia service,” id. at 582). Thus, even assuming that Justice
CLEMENT is correct in her historical recitation that the “purpose” of Const 1963, art 3, § 8
was “to prevent the collection of unconstitutional taxes in the first place” by allowing this
Court to issue an advisory opinion before the effective date of the legislation, that does
not mean that this must be its only “purpose” or, even more significantly, that such
historical context can be allowed to take priority over the straightforward and
unambiguous language of Const 1963, art 3, § 8. Rather, it is quite possible that a
constitutional provision may have multiple “purposes,” and extraconstitutional sources of
“history” are considerably more likely to identify “purposes” additional to those set forth
by constitutional text than, as Justice CLEMENT suggests, to subtract from the “purposes”
that appear clearly from constitutional text.
Furthermore, even assuming that Justice CLEMENT is correct that the purpose of
this provision was to enable this Court to issue an advisory opinion before the effective
date of legislation, allowing it to also issue an advisory opinion after the effective date of
legislation is in no way incompatible with her discerned purpose. Before the adoption of
Const 1963, art 3, § 8, this Court only possessed the “judicial power” to render an
opinion in an actual case or controversy after the effective date of the legislation being
challenged. The ratifiers of the 1963 Constitution decided to broaden this Court’s, and
this state’s, “judicial power” to also encompass the authority to issue advisory opinions in
certain circumstances in which the Legislature has requested an opinion in advance of the
effective date of the legislation.51 Reading Const 1963, art 3, § 8 as allowing this Court
to issue an advisory opinion after the effective date of the legislation in circumstances in
which the Legislature requested such an opinion before the effective date of the
legislation does nothing to undermine this Court’s undeniable authority to issue an
advisory opinion before the effective date of the legislation. In other words, even
assuming that the “purpose” of Const 1963, art 3, § 8 was to allow this Court to issue
advisory opinions before the effective date of legislation, this does not signify in any way
that Const 1963, art 3, § 8 does not also allow the Court to issue advisory opinions after
the effective date. And as discussed earlier, because the only time limitation contained in
the actual text of Const 1963, art 3, § 8 is that the Legislature must make its request “after
[the legislation] has been enacted into law but before its effective date,” that is the only
time limitation I would impose. And it is the only time limitation that has ever been
imposed by this Court under Const 1963, art 3, § 8.
51
While Justice CLEMENT describes Const 1963, art 3, § 8 as creating a “limited
exception to our ordinary exercise of the ‘judicial power’ ” (emphasis added), I would
describe it instead as expanding this state’s conception of its own “judicial power.”
35
C. ADDRESS TO THE PEOPLE
Next, Justice CLEMENT relies upon the Address to the People to support her
conclusion that “advisory opinions after the effective date of legislation are
impermissible.” In particular, the Address to the People states that Const 1963, art 3, § 8
“empowers the supreme court to furnish advisory opinions . . . but only as to legislative
acts that are already passed and signed by the governor, and before they become
effective.” 2 Official Record, Constitutional Convention 1961, p 3368. Although the
Address to the People may well be “relevant to understanding the ratifiers’ intent,” Mich
Coalition of State Employee Unions v Michigan, 498 Mich. 312, 324 (2015), it is “not
controlling,” and “it cannot be used to contradict . . . the constitutional text.” Citizens
Protecting Michigan’s Constitution v Secretary of State, 503 Mich. 42, 61 & n 26 (2018).
Just as even “a prefatory clause does not limit or expand the scope of the operative
clause,” Heller, 554 U.S. at 578, the Address to the People hardly can limit or expand the
scope of the constitutional text. To emphasize, I view the Address as a highly relevant
historical consideration, particularly where there is textual unclarity or ambiguity, but it is
not so highly relevant that it can countermand the actual language of the Constitution, the
text of which is even more highly relevant, and indeed in almost all instances is
dispositive of the Constitution’s meaning.52
Const 1963, art 3, § 8 provides that the Legislature may request an advisory
opinion “after [the legislation] has been enacted into law but before its effective date.”
Pursuant to this language, the Legislature can request an advisory opinion the day before
the effective date of the legislation. However, according to the concurring justices, the
Legislature could not request an advisory opinion at that time because that would not be
sufficiently in advance of the effective date to allow this Court an opportunity to consider
and decide the constitutional issues raised and to issue an opinion before the effective
date. Because the actual language of the Constitution allows the Legislature to request an
advisory opinion up to the effective date of the legislation, we are obliged to interpret it
in a consonant manner. If instead we interpret Const 1963, art 3, § 8, as does Justice
CLEMENT, as prohibiting this Court from issuing an advisory opinion after the effective
52
And contrary to how Justice CLEMENT apparently reads Const 1963, art 3, § 8, the
silence of this provision concerning an ending date beyond which this Court cannot issue
an advisory opinion, i.e., the effective date of the underlying legislation, does not give
rise to an ambiguity. Rather, Const 1963, art 3, § 8 is quite clear, and unambiguous, that
a legislative enactment’s effective date is relevant only as to the Legislature’s request for
an opinion and that this Court is not constrained in any way by that date as an ending
time for the issuance of an opinion. This is made clear both by the silence of Const 1963,
art 3, § 8 in this regard, as well as by implications that can be reasonably and logically
drawn from the provision’s nonsilence as to other dates that Const 1963, art 3, § 8 has
made relevant in the advisory opinion process.
36
date of the legislation, the Legislature would also be deprived of its authority to request
an advisory opinion up to the effective date of the legislation because a request made too
closely in time would be inadequate to comply with the newly discerned requirements of
Const 1963, art 3, § 8. That is, even the limited “purpose” ascribed to Const 1963, art 3,
§ 8 by Justice CLEMENT understates the extent to which her understanding would curtail
the effective ability of the Legislature or the Governor to seek an advisory opinion, by
imposing upon each an obligation to engage in speculation and guesswork as to how long
in advance of the effective date a request for an advisory opinion must be made and then
to suffer the prospect that delays on the part of the Court itself might undo any such
calculation. I will abide instead by the advisory opinion process, and its certainties, as set
forth by Const 1963, art 3, § 8. The language in the Address to the People describing this
provision as only allowing this Court to furnish advisory opinions before the effective
date is simply inconsistent with its actual language, which accords the Legislature the
authority to request an advisory opinion up to the effective date of the legislation.
Because the language in the Address to the People is not controlling, and because the
language of Const 1963, art 3, § 8 is controlling, I would preserve and maintain the latter.
D. DELAYS
Finally, Justice CLEMENT’s interpretation of Const 1963, art 3, § 8 would enable
delays-- of the very sort that have occurred in the instant case on the part of the Court itself--
to nullify this Court’s authority to affirmatively respond to requests for advisory
opinions. That is, her understanding would enable the Court to avoid its (discretionary)
constitutional responsibility to furnish advisory opinions when these have been
appropriately requested by the Governor or the Legislature by simply doing nothing at all
rather than by acting in an accountable manner and in comity with the legislative and
executive branches, either to grant or to deny the request. Such delays, as I have already
remarked, are particularly troubling in the context of Const 1963, art 3, § 8 because every
day delayed in affording the Governor or the Legislature an answer-- affirmative or
negative-- is one more day denied interested parties in pursuing an actual case or
controversy.
For the reasons set forth in both Justice ZAHRA’s dissenting statement and this
dissenting statement, I would have affirmatively answered the instant request for an
advisory opinion, and I would have done so in a far timelier manner. Thus, I respectfully
dissent.
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting).
I respectfully dissent from this Court’s decision to deny the requests of the
Michigan House of Representatives and the Michigan Senate (collectively, the
Legislature) for the issuance of an opinion on the constitutionality of 2018 PA 368
 37
(which amended the Improved Workforce Opportunity Wage Act, 2018 PA 337) and
2018 PA 369 (which amended the Earned Sick Time Act, 2018 PA 338). I would
forthwith honor the requests and issue an advisory opinion addressing the
constitutionality of the Legislature’s action with regard to these public acts.
The Earned Sick Time Act and the Improved Workforce Opportunity Wage Act
were originally proposed as initiative petitions through the people’s right to exercise
direct democracy.53 After the Board of Canvassers certified the initiatives for placement
on the ballot and before the ballots were printed, the Legislature enacted both acts
without change.54 Thus, the initiatives were not presented to the people for a vote in the
November 2018 election. On December 13, 2018, the Governor signed bills that
amended both acts. Neither act was given immediate effect. After the legislation was
enacted into law but before its effective date, both the House and the Senate resolved to
request an advisory opinion pursuant to Const 1963, art 3, § 8. Specifically, we are asked
to opine on the constitutionality of enacting an act proposed by the initiative process and
later amending that act in the same legislative session.
I would grant the Legislature’s request because this is precisely the sort of
important question that Const 1963, art 3, § 8 is intended to address.55 The question
presented is profoundly significant because this legislation will likely affect in one form
or another nearly every Michigan resident.56 By not addressing the Legislature’s
requests, employers will face a quandary about whether to follow the statutes as amended
or the preamendment versions of the laws. This dilemma has resulted in uncertainty and
confusion throughout a significant sector of Michigan’s economy.
53
Const 1963, art 2, § 9.
54
Id.
55
That provision states:
Either house of the legislature or the governor may request the opinion of
the supreme court on important questions of law upon solemn occasions as
to the constitutionality of legislation after it has been enacted into law but
before its effective date.
56
The importance of the question presented is exemplified by the fact that in the current
divisive political climate in which we find our state and nation, the request for an
advisory opinion is supported by members of both major political parties and by both
proponents and opponents of the initiatives, as well as by proponents and opponents of
the changes made to the initiatives by the Legislature. The entities that have submitted
amicus curiae briefs persuasively assert urgency for an opinion from this Court,
maintaining that genuine confusion exists among employers regarding which versions of
the laws they should follow.
38
Furthermore, the request for an advisory opinion has been presented “upon [a]
solemn occasion[] as to the constitutionality of legislation . . . .”57 “[I]f this Court does
not issue an opinion now, but at some later time determines that one or more of the
provisions of these laws is unconstitutional, the question of remedy almost certainly will
have become far more difficult, with far greater potential for unfairness to the parties.”58
Finally, a response on the Court’s part would reflect the kind of comity among the
branches of state government that underlies both our Constitution generally as well as
Const 1963, art 3, § 8 specifically. In short, I believe that a response to the advisory
opinion request in the present circumstance is exactly what is required of the highest
court of our state. Such a response would clarify the validity of two laws in which
confusion and uncertainty otherwise would obtain to the detriment of innumerable
employers and employees across our state. Because the Legislature’s advisory opinion
request pertains to an “important question[] of law,” it has been presented upon a
“solemn occasion,”59 and a response would alleviate the legal uncertainty and confusion
Michigan now faces, I would grant this request and answer the questions presented in an
expedited manner.
MARKMAN and VIVIANO, JJ., join the statement of ZAHRA, J.
VIVIANO, J. (dissenting).
For the reasons expressed in Justice ZAHRA’s dissenting statement, I believe that
this Court should issue an advisory opinion as to the constitutionality of 2018 PA 368 and
2018 PA 369. I write separately to explain why I believe this Court has discretion to do
so after the effective date of the public acts in question.
The objective of interpreting a constitutional provision “ ‘is to determine the text’s
original meaning to the ratifiers, the people, at the time of ratification.’ ” People v
Tanner, 496 Mich. 199, 223 (2014), quoting Wayne Co v Hathcock, 471 Mich. 445, 468
(2004). “The first rule a court should follow in ascertaining the meaning of words in a
constitution is to give effect to the plain meaning of such words as understood by the
people who adopted it.” Bond v Ann Arbor Sch Dist, 383 Mich. 693, 699 (1970). We do
this “by determining the plain meaning of the text as it was understood at the time of
ratification,” Mich Coalition of State Employee Unions v Michigan, 498 Mich. 312, 323
57
Const 1963, art 3, § 8.
In re 2002 PA 48 (House of Representatives’ Request for an Advisory Opinion), 467
58
Mich. 1203, 1205 (2002) (MARKMAN, J., dissenting).
59
Const 1963, art 3, § 8.
39
(2015), “unless technical, legal terms are used,” id. at 323 n 17 (quotation marks and
citation omitted). “To help discover the common understanding, this Court has observed
that constitutional convention debates and the address to the people, though not
controlling, are relevant.” Citizens Protecting Michigan’s Constitution v Secretary of
State, 503 Mich. 42, 61 (2018) (“The primary rule is that of common
understanding . . . .”) (quotation marks and citations omitted). “However, such extrinsic
evidence can hardly be used to contradict the unambiguous language of the constitution.”
Nat’l Pride At Work, Inc v Governor, 481 Mich. 56, 80 (2008).
Article 3, § 8 of our Constitution provides that “[e]ither house of the legislature or
the governor may request the opinion of the supreme court on important questions of law
upon solemn occasions as to the constitutionality of legislation after it has been enacted
into law but before its effective date.” As Justice CLEMENT notes, Const 1963, art 3, § 8
“does not affirmatively grant this Court the power to issue advisory opinions . . . .” Ante
at 5 (CLEMENT, J., concurring). Instead, this Court’s power to issue advisory opinions is
rather obviously implied from the text. The provision is not a model of clarity, but that
does not relieve us of our obligation to determine its original meaning, i.e., “the meaning
the words and phrases of the [provision] would have had, in context, to ordinary readers,
speakers, and writers of the English language, reading a document of this type, at the time
adopted[.]” Kesavan & Paulsen, The Interpretive Force of the Constitution’s Secret
Drafting History, 91 Geo LJ 1113, 1118 (2003).
To determine whether the Court has discretion to issue an advisory opinion after
the effective date of those acts, two phrases from Article 3, § 8 must be examined. Both
phrases generally relate to when an advisory opinion may be requested and thus,
impliedly, when one may properly be issued by the Court. The first of these phrases
relates to the circumstances in which an advisory opinion may be requested: “upon
solemn occasions.” This phrase has not been construed by our Court; however, it has
been construed by our sister state courts both before and after it was adopted in Michigan.
Understanding the original meaning of this phrase is key to a proper understanding of the
scope of the Court’s advisory opinion power.
At the time of the constitutional convention for Michigan’s 1963 Constitution, the
phrase “upon solemn occasions” appeared in the state constitutions of Massachusetts,
Maine, Colorado, New Hampshire, and South Dakota60—a fact that was not lost on the
60
See Mass Const, art 85 (“Each branch of the legislature, as well as the governor or the
council, shall have authority to require the opinions of the justices of the supreme judicial
court, upon important questions of law, and upon solemn occasions.”); NH Const, art 74
(“Each branch of the legislature as well as the governor and council shall have authority
to require the opinions of the justices of the supreme court upon important questions of
law and upon solemn occasions.”); Me Const, art VI, § 3 (“The Justices of the Supreme
Judicial Court shall be obliged to give their opinion upon important questions of law, and
40
convention delegates. See 1 Official Record, Constitutional Convention 1961, p 1548.
When first introducing the “upon solemn occasions” language, Delegate Marjorie
McGowan explained how she understood its meaning:
By a solemn occasion the constitution means some serious and unusual
urgent need. It has been held to be such urgent need when either branch of
the legislature having some action in view has serious doubts as to their
power and authority to take such action under the constitution or existing
statutes. [Id. at 1543.]
Delegate McGowan noted that this definition was taken from a Massachusetts case
interpreting the phrase. Id., citing In re Opinion of the Justices, 290 Mass 601, 602
(1935) (“These words mean that the opinions can be required only when ‘such questions
of law are necessary to be determined by the body making the inquiry, in the exercise of
the legislative or executive power entrusted to it by the Constitution and laws of the
Commonwealth.’ ‘By a solemn occasion, the Constitution means some serious and
unusual exigency. It has been held to be such an exigency when . . . either branch of the
Legislature, having some action in view, has serious doubts as to their power and
authority to take such action, under the Constitution, or under existing statutes.’ ”)
(citations omitted).61
Because the phrase “upon solemn occasions” had acquired a particular meaning in
the law by this time, I believe it is a legal term of art describing the circumstances in
which this Court may properly exercise its discretion to issue an advisory opinion. See
People v Law, 459 Mich. 419, 425 n 8 (1999) (“A legal term of art is a technical word or
phrase that has acquired a particular and appropriate meaning in the law.”). And, while
upon solemn occasions, when required by the Governor, Senate or House of
Representatives.”); SD Const, art 5, § 5 (“The Governor has authority to require opinions
of the Supreme Court upon important questions of law involved in the exercise of his
executive power and upon solemn occasions.”); Colo Const, art VI, § 3 (“The supreme
court shall give its opinion upon important questions upon solemn occasions when
required by the governor, the senate, or the house of representatives; and all such
opinions shall be published in connection with the reported decision of said court.”).
61
See also Questions Submitted by the House of Representatives with Answers of the
Justices, 95 Me 564, 566-567 (1901) (“The questions submitted at the present time are
undoubtedly important questions of law[;] it therefore becomes necessary to determine if
they were submitted upon a solemn occasion. It has been said that this language of the
Constitution means some serious and unusual exigency, such an exigency as exists when
the body making the inquiry, having some action in view, has serious doubts as to its
power and authority to take such action under the Constitution or under existing
statutes.”).
41
we are not bound by later decisions from other state courts interpreting the phrase, I
believe some of those, too, are instructive. See, e.g., In re Opinion of the Justices, 815
A2d 791, 794 (Me, 2002) (“The following guideposts assist our determination on whether
a ‘solemn occasion’ has been presented on an ‘important question[ ] of law.’ First, the
matter must be of ‘live gravity,’ referring to the immediacy and seriousness of the
question.”); In re Daugaard, 884 NW2d 163, 167 (SD, 2016) (“In determining whether a
request for an advisory opinion presents a solemn occasion, the Court weighs . . . whether
the question presents issues pending before the Court, . . . whether alternative remedies
exist, whether the facts and questions are final or ripe for an advisory opinion, the
urgency of the question, . . . and whether the Court has been provided with an adequate
amount of time to consider the issue.”).
As these decisions recognize, the original meaning of the phrase “upon solemn
occasions” was “some serious and unusual urgent need,” and the timing of the request is
an important consideration in determining whether the request was made on a “solemn
occasion.” This language was understood by the delegates as providing the Court wide
discretion in choosing whether or not to issue an advisory opinion.62
The second phrase of Article 3, § 8 relating to when an advisory opinion may be
requested provides that a request must be made “after [the legislation] has been enacted
into law but before its effective date.” Thus, the provision expressly restricts the
chronological time period in which such a request may be made. By direct implication,
the phrase also restricts this Court’s power to issue an advisory opinion to cases in which
the request is timely made. For the following reasons, however, I do not believe that this
phrase can fairly be understood as placing a direct, jurisdictional limitation on this
Court’s ability to issue an advisory opinion after the effective date of the legislation under
review.
First, that is not what the provision says, nor do I think it reasonable to imply such
a rule from the text. The grammatical structure of this provision gives us an important
clue as to why this timing requirement does not apply to issuance of the Court’s opinion.
62
As Delegate Eugene Wanger explained: “What these words do is give the court sound
legal doctrine for hanging their hat on in refusing to give an opinion. . . . In exercising
restraint, . . . opinions [of other states’ courts] construe the words ‘solemn occasions’ to
authorize their refusal . . . in answering these questions.” 1 Official Record,
Constitutional Convention 1961, pp 1548-1549. Delegate Robert Danhof similarly
stated: “[I]t is upon those words ‘solemn occasion’ that [the Supreme Court] ha[s] the
right to turn [a request] down and they will turn it down when they don’t want to do it,
which we would imagine would be most of the time, and because of that, they use that to
state, no, this is not a solemn occasion, even though we might have an important question
of law.” Id. at 1549.
 42
In the text, the word “opinion” (the object of the sentence) is modified by three adjectival
prepositional phrases—“of the supreme court,” “on important questions of law,” and “as
to the constitutionality of the legislation.” The first answers the question of which court
may issue such an opinion—only this Court. The second two phrases limit the subject
matter of advisory opinions to “important questions of law . . . as to the constitutionality
of legislation.” These limitations are directly connected to any advisory opinion that may
be issued by this Court. The remaining two phrases in the text (“upon solemn occasions”
and “after [the legislation] has been enacted into law but before its effective date”) are
adverbial prepositional phrases that modify the verb: “may request.” Ordinarily,
therefore, we would interpret these phrases as describing when the subject of the sentence
(“[e]ither house of the legislature or the governor”) may undertake the action permitted
(requesting an advisory opinion). However, as noted above, “upon solemn occasions” is
a legal term of art that provides this Court with wide discretion in choosing whether or
not to issue an advisory opinion. Thus, while perhaps inartfully drafted, this phrase was
clearly intended to relate to the Court’s power to issue an advisory opinion. But there is
no similar reason to disregard the grammatical structure of the sentence as it relates to the
“effective date” phrase—that provision is directly connected to and limits when a request
can be made. By direct implication, it also restricts this Court’s power to issue an
advisory opinion to cases in which the request is timely made. But there is simply
nothing in the text of this provision to indicate that it also limits when this Court may
issue its opinion.
Moreover, I would not lightly infer that the provision establishes a jurisdictional
deadline for issuance of the Court’s opinion in the absence of express language. Indeed,
because placing such a deadline on the Court would be so extraordinary, “one would
normally expect it to be explicitly decreed rather than offhandedly implied.” 63 Nor would
this be the most natural reading of the provision—it would be strange for a provision to
impliedly impose the same deadline for two sequential events by two different
constitutional actors. That is not typically how deadline provisions are drafted, and with
63
Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton
University Press, 1997), p 29. Notably, the one state constitution I found that contains
timing requirements for issuance of a court’s advisory opinion does so expressly. Cf. Fla
Const, art IV, § 1(c) (“The governor may request in writing the opinion of the justices of
the supreme court as to the interpretation of any portion of this constitution upon any
question affecting the governor’s executive powers and duties. The justices shall, subject
to their rules of procedure, permit interested persons to be heard on the questions
presented and shall render their written opinion not earlier than ten days from the filing
and docketing of the request, unless in their judgment the delay would cause public
injury.”) (emphasis added); Fla Const, art IV, § 10 (“The justices . . . shall render their
written opinion no later than April 1 of the year in which the initiative is to be submitted
to the voters pursuant to Section 5 of Article XI.”).
43
good reason—the time period for the second actor (here, the Court) would vary
depending on the expedition of the first. And, in any event, such a strained reading is
unnecessary—as I noted above, the phrase “upon solemn occasions” provides this Court
with wide discretion to take into account a number of considerations in deciding whether
to grant or deny a request for an advisory opinion, including timing. Lastly, and as a
further aid in determining the public understanding of this provision, it is worth noting
that this Court has frequently issued advisory opinions after the effective date of the act at
issue, including in the period immediately after ratification.64
I am unpersuaded by Justice CLEMENT’s analysis because I do not believe she
provides adequate textual support for her conclusion that the effective date deadline also
was intended to apply to issuance of the Court’s opinion. “Those who suggest that the
meaning to be given a provision of our constitution varies from a natural reading of the
constitutional text bear the burden of providing the evidence that the ratifiers subscribed
to such an alternative construction.” Michigan United Conservation Clubs v Secretary of
State (After Remand), 464 Mich. 359, 376 (2001) (YOUNG, J., concurring). I do not
believe Justice CLEMENT has met this burden. First, it appears no delegate at the
constitutional convention ever mentioned that he or she understood the effective date
deadline as barring the Court from issuing an advisory opinion after the legislation’s
effective date.65 Second, while language suggesting this understanding did find its way
into the Address,66 that language was added in a late amendment right before the Address
was approved, so it is questionable how well it reflects the delegates’ understanding of
the provision.67 In any event, the more important inquiry is the effect this provision of
64
See ante at 19 n 35 (CLEMENT, J., concurring).
65
In this sense, it was like the watchdog that did not bark in the famous Sherlock Holmes
novel, i.e., the absence of a fact that one would expect to see. Conan Doyle, “Silver
Blaze,” Memoirs of Sherlock Holmes (New York: Harper & Bros, 1894), pp 22, 26. See
also Mich Coalition, 498 Mich. at 326-327 (noting the absence of references of
“pensions” or “retirement” during the constitutional convention debates as further support
for its conclusion that the phrase “rates of compensation” in Const 1963, art 11, § 5 was
not commonly understood to include them).
66
The Address to the People states, in pertinent part, that the Court may issue advisory
opinions only “before [the legislation at issue] become[s] effective.” 2 Official Record,
Constitutional Convention 1961, p 3368.
67
We have also recognized that in the hierarchy of permissible extrinsic evidence, the
Address to the People should take precedence over the debates. See Mich Coalition, 498
Mich. at 323-324 (“The Address to the People, which was distributed to Michigan citizens
in advance of the ratification vote and which explained in everyday language what each
provision of the proposed new Constitution was intended to accomplish, and, to a lesser
44
the Address had on the common understanding of the people who ratified the
Constitution. As for them, it is well to remember that they voted on and approved the
language of the Constitution, not the language of the Address. As we have previously
recognized, “the actual language of the proposed constitution constitutes the best
evidence of the ‘common understanding[.]’ ” Goldstone v Bloomfield Twp Pub Library,
479 Mich. 554, 561 n 4 (2007), quoting Studier v Mich Pub Sch Employees’ Ret Bd, 472
Mich. 642, 652 (2005). And, while the Address may be a relevant consideration, it cannot
be used to contradict the unambiguous language of the Constitution. See Nat’l Pride At
Work, Inc, 481 Mich. at 80. In my view, the errant phrase in the Address is insufficient to
overcome the textual and historical clues as to the meaning of Article 3, § 8 that are
discussed above.
I also disagree with Justice CLEMENT’s interpretive approach because she relies
upon extrinsic circumstances to determine the purpose of the provision, which violates a
fundamental tenet of textualism. Although extrinsic sources may be used to help us
determine the original meaning of the words and phrases in the text, see Citizens
Protecting Michigan’s Constitution, 503 Mich. at 61; Dist of Columbia v Heller, 554 US
degree, the constitutional convention debates are also relevant to understanding the
ratifiers’ intent.”) (cleaned up; emphasis added). This is because the Address to the
People was approved by the delegates and was distributed prior to ratification. See, e.g.,
Regents of Univ of Mich v Michigan, 395 Mich. 52, 60 (1975) (“The reliability of the
‘Address to the People . . . lies in the fact that it was approved by the general convention
on August 1, 1962 as an explanation of the proposed constitution. The ‘Address’ also
was widely disseminated prior to adoption of the constitution by vote of the people.”).
Interestingly, the proof of the Address to the People, which was mailed to the delegates
on June 26, 1962, states only that the new section “empowers the supreme court to
furnish advisory opinions to the governor and each house of the legislature on important
questions of law and on solemn occasions,” and refers to the unconstitutional use tax.
Proof Copy, Address to the People, p 23, available at

(accessed December 5, 2019) [https://perma.cc/AQ52-VYGG]. The language Justice
CLEMENT refers to was inserted along with scores of other changes in a later amendment
that was proposed by the Committee on Public Information. However, these changes
were not mailed to the delegates until July 27, 1962, only four days before the Address
was approved. 2 Official Record, Constitutional Convention 1961, p 3301. The
language, which was one of 112 proposed nonsubstantive amendments to the Address to
the People, was not discussed by the delegates before its adoption. Id. at 3301-3311. The
only explanation as to why the amendment was proposed is a brief note in the Official
Record—“for clarification.” Id. at 3303. Therefore, I question whether the amended
language is entitled to the elevated consideration normally given to the Address.
45
570, 605 (2008), they should not be used to determine what the original drafters intended
based on the mistaken notion that “because they were Framers . . . their intent is
authoritative and must be the law[.]” Scalia, A Matter of Interpretation: Federal Courts
and the Law (Princeton, NJ: Princeton University Press, 1997), p 38.68 Instead, “[t]he
purpose of a law must be ‘collected chiefly from its words,’ not ‘from extrinsic
circumstances.’ ” King v Burwell, 135 S. Ct. 2480, 2503 (2015) (SCALIA, J., dissenting),
citing Sturges v Crowninshield, 17 U.S. 122, 202 (1819). Similarly, in his seminal treatise,
Justice COOLEY recognized that intent “is to be found in the instrument itself” rather than
extrinsic sources.69 We have reaffirmed this principle on more than one occasion. See,
e.g., City of Lansing v Lansing Twp, 356 Mich. 641, 649-650 (1959) (“No intent may be
imputed to the legislature in the enactment of a law other than such is supported by the
face of the law itself. The courts may not speculate as to the probable intent of the
legislature beyond the words employed in the act.”).70 Not surprisingly, we have
68
See also Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St Paul:
Thomson/West, 2012), p 56 (noting, in distinguishing “textualist interpretation and so-
called purposive interpretation,” that textualists insist, among other things, that “the
purpose must be derived from the text, not from extrinsic sources such as legislative
history or an assumption about the legal drafter’s desires”).
69
Cooley, Constitutional Limitations (1st ed), p 55; see also id. (“It is to be presumed that
language has been employed with sufficient precision to convey [the intent], and unless
examination demonstrates that the presumption does not hold good in the particular case,
nothing will remain except to enforce it.”); id. at 55 n 3 (discussing Justice Greene
Bronson’s remarks “showing the impolicy and danger of looking beyond the instrument
itself to ascertain its meaning, when the terms employed are positive and free from all
ambiguity”), citing People v Purdy, 2 Hill 31, 35 (NY, 1841) (BRONSON, J., dissenting),
rev’d 4 Hill 384 (NY, 1842).
70
Citing Mich Coalition, 498 Mich. at 325-326, Justice CLEMENT incorrectly asserts that
“we have explicitly authorized looking to ‘extrinsic circumstances to determine the
purpose of’ constitutional provisions.” Ante at 3 n 3 (CLEMENT, J., concurring).
However, no such authorization appears in the text of the Court’s opinion or is even
implicit in the interpretive work we did in that case. See Mich Coalition, 498 Mich. at
323-327 (using historical sources not to determine the purpose of Const 1963, art 11, § 5,
but instead to confirm the Court’s textual interpretation of the original meaning of one
phrase in that provision, “rates of compensation”). Although we have stated in Mich
Coalition and elsewhere that in construing constitutional provisions, “the court should
have regard to the circumstances leading to their adoption and the purpose sought to be
accomplished,” see, e.g., Kearney v Bd of State Auditors, 189 Mich. 666, 673 (1915), as
the authorities cited above make abundantly clear, the purpose of the provision must be
derived from its text, see id. at 672-673. Properly understood, then, we should only have
regard to the circumstances leading to the adoption of the Constitution if those
46
recognized that it is error to “focus[]on the history behind [a constitutional provision] and
the intent of the constitutional convention delegates in proposing it, rather than on the
interpretation that the people would have given the provision when they adopted it.”71
circumstances help us to discover the common understanding of the words and phrases in
the provision at the time of ratification. Citizens Protecting Michigan’s Constitution, 503
Mich. at 61.
71
Studier, 472 Mich. at 651-652. In her dissent in Musselman v Governor, 448 Mich. 503
(1995), which this Court cited with approval in Studier, Justice RILEY explained why this
is so:
While the majority does attempt to substantiate its conclusion . . . by
looking to the intent of the framers of the provision, such an examination is
improper because, as stated by Justice COOLEY in [Twitchell v] Blodgett,
[13 Mich. 127, 166 (1865)], “the light to be derived from an examination of
the proceedings of constitutional conventions, on questions of
constitutional construction, is commonly vague and inconclusive, and not
to be allowed, in any case, to control the meaning of unambiguous terms.”
He further stated:
If, however, by an examination of these proceedings,
we had succeeded in ascertaining definitely the intent of the
convention, we might still be far from the intent of the people
in adopting their work. That intent should be gathered from
the words embraced by the instrument as adopted, if those
words are free from doubt. The people, in passing upon it,
looked only to the clauses as they then stood, without
troubling themselves with the considerations, or the
accidental circumstances, that may have brought them to their
present form.
Justice COOLEY then concluded that if the constitution
expresses a natural meaning which, upon the first
impression . . . strike[s] the mind on reading the
clause . . . then further examination, with a view to find some
other and more subtle meaning, ought to be made with
extreme caution, lest we deceive ourselves into disregarding
the plain and obvious sense for some other, which only
ingenuity discovers and suggests. [Musselman v Governor,
448 Mich. 503, 528-529 (1995), on reh 450 Mich. 574 (1996)
(RILEY, J., dissenting) (citations omitted).]
47
Having derived the purpose from an improper source, Justice CLEMENT also errs
in the way she uses it. A purpose properly derived from the text may be used as follows:
The subject matter of the document (its purpose, broadly speaking) is the
context that helps to give the words meaning—that might cause draft to
mean a bank note rather than a breeze. And even beyond that, it can be said
more generally that the resolution of an ambiguity or vagueness that
achieves a statute’s purpose should be favored over the resolution that
frustrates its purpose. [Scalia & Garner, Reading Law: The Interpretation
of Legal Texts (St Paul: Thomson/West, 2012), p 56.]
Justice CLEMENT does not use the purpose of the provision to give meaning to a
particular word or to resolve an ambiguity in a manner that does not frustrate the purpose
of the provision. Instead, she interprets the provision by focusing on “ ‘the mischief
designed to be remedied . . . .’ ” Ante at 16 (CLEMENT, J., concurring), quoting People ex
rel Drake v Mahaney, 13 Mich. 481, 497 (1865). This interpretive approach, known as
the “mischief rule,” is generally synonymous with purposivism. 72 It has been sharply
criticized, and rightly so. See, e.g., Jordan, Legislative History and Statutory
Interpretation: The Relevance of English Practice, 29 USF L Rev 1, 6 (1994) (“[T]he
mischief rule has also been criticized as unduly subjective, authorizing the courts, in the
words of one Lord Justice, to engage in ‘redrafting with a vengeance.’ ”).73 Instead,
while extrinsic circumstances may be relevant as an aid in discerning the common
understanding of a legal text, that history may not be used to identify the problem the
provision was designed to remedy so the provision may be construed only to mitigate that
72
See Reading Law, p 433 (defining the “mischief rule” as “[t]he interpretive doctrine
that a statute should be interpreted by first identifying the problem (or ‘mischief’) that the
statute was designed to remedy and then adopting a construction that will suppress the
problem and advance the remedy,” and characterizing the mischief rule as “a primarily
British name for purposivism”); id. at 438 (noting that “[b]roadly speaking, purposivism
is synonymous with mischief rule”).
73
I recognize, of course, that Justice COOLEY authored Mahaney and that he appeared to
utilize the “mischief rule” in that case. He did so, however, only after examining the text
of the constitutional provision and determining that it did not preclude the action at issue.
See Mahaney, 13 Mich. at 496 (“We are unable to see how this conflicts with the
provision referred to.”). To the extent he looked outside the text for “[t]he mischief
designed to be remedied” in Mahaney, he clearly rejected this interpretive approach in his
later work on the subject. See Cooley, Constitutional Limitations (1st ed), p 55.
48
problem in the absence of textual support for such a narrow reading.74
I agree that timing is an important consideration for the Court in deciding whether
to grant or deny a request for an advisory opinion; however, I do not believe the Court is
precluded from issuing an advisory opinion after the effective date of the legislation at
issue. For the reasons stated in Justice ZAHRA’s dissenting statement, I believe the
requests from the House and Senate at issue here were submitted upon a solemn occasion
and that we should grant the requests and issue an advisory opinion despite the fact that
the public acts in question have already taken effect.
74
See Oncale v Sundowner Offshore Servs, Inc, 523 U.S. 75, 79 (1998) (noting that
“statutory prohibitions often go beyond the principal evil to cover reasonably comparable
evils, and it is ultimately the provisions of our laws rather than the principal concerns of
our legislators by which we are governed”).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 18, 2019
t1218
Clerk