Michigan United Conservation Clubs v. Secretary of State , 246 Mich. App. 82 ( 2001 )

630 N.W.2d 376 (2001) 246 Mich. App. 82

MICHIGAN UNITED CONSERVATION CLUBS, Michigan Coalition for Responsible Gun Owners, Ross Dykman, David K. Felbeck, and Corrie Williams, Plaintiffs,
v.
SECRETARY OF STATE and Board of State Canvassers, Defendants, and
People Who Care About Kids, Intervening-Defendant.

Docket No. 233331.

Court of Appeals of Michigan.

Submitted May 9, 2001, at Lansing. Decided May 16, 2001, at 9:00 a.m. Released for Publication July 31, 2001.

Dickinson Wright PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey, and Scott R. Knapp), Lansing, for the plaintiffs.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Gary P. Gordon and Katherine C. Galvin, Assistant Attorneys General, for the defendants.

Timothy A. Baughman, Royal Oak, for the intervening defendant.

Mika, Meyers, Beckett & Jones, PLC (by Michael A. Zagaroli and Elizabeth K. Bransdorfer), Grand Rapids, amicus curiae for Michigan Association of Chiefs of Police.

Before McDONALD, P.J., and O'CONNELL and METER, JJ.

ON REMAND

O'CONNELL, J.

Plaintiffs seek a writ of mandamus that orders defendants to reject a petition for referendum filed by intervenor-defendant.^[1] For the reasons stated in this opinion, we deny the request for mandamus.

At issue is 2000 PA 381, a comprehensive piece of legislation that modified the standards for the issuance of concealed weapon permits in Michigan. See M.C.L. § 28.421 et seq. The legislation takes effect on July 1, 2001. However, if the power of referendum is properly invoked, the legislation will not take effect unless it is approved by voters at the next general election in November 2002. Const. 1963, art. 2, § 9; MCL 168.477(2).

Plaintiffs filed the instant complaint seeking a writ of mandamus from this Court on March 23, 2001, after the Secretary of State accepted for filing a petition by intervenor-defendant calling for a referendum on 2000 PA 381. The issuance of a writ of mandamus is proper where

(1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial and involves no exercise of discretion or judgment, and (4) no other remedy exists, legal or equitable, that might achieve the same result. [Baraga Co. v. State Tax Comm., 243 Mich.App. 452, 454-455, 622 N.W.2d 109 (2000).]

The crux of plaintiffs' argument in this mandamus action is that 2000 PA 381 is not subject to referendum because it appropriates funds to a state institution. Plaintiffs' assertion implicates Const. 1963, art. 2, § 9, which provides in pertinent part:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum.... The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. [Emphasis supplied.]

Plaintiffs also direct our attention to M.C.L. § 28.425b(5) and M.C.L. § 28.425w, arguing that these provisions appropriate funds for state institutions within the meaning of Const. 1963, art. 2, § 9. M.C.L. § 28.425b(5) provides:

Each applicant shall pay a fee of $55.00 ... plus an additional assessment of $5.00 for deposit in the concealed weapon enforcement fund under [MCL 28.425v] at the time of filing an application under this section.... The county treasurer shall deposit $10.00 of each fee collected under this section in the general fund of the county to the credit of the county clerk and forward the balance to the state treasurer. The state treasurer shall deposit the balance of the fee in the general fund to the credit of the department of state police. The state treasurer shall deposit the assessment in the concealed weapon enforcement fund created in [MCL 28.425v]. Each county shall report to the senate and house fiscal agencies by October 1 of each year its costs per applicant to implement this section.

Moreover, M.C.L. § 28.425w(1) states:

One million dollars is appropriated from the general fund to the department of state police for the fiscal year ending September 30, 2001 for all of the following:

(a) Distributing trigger locks or other safety devices for firearms to the public free of charge.

(b) Providing concealed pistol application kits to county sheriffs, local police agencies, and county clerks for distribution under [MCL 28.425].

(c) The fingerprint analysis and comparison reports required under [MCL 28.425b(11) ].

(d) Photographs required under [MCL 28.425c].

(e) Creating and maintaining the database required under [MCL 28.425e].

(f) Creating and maintaining a database of firearms that have been reported lost or stolen. Information in the database shall be made available to law enforcement through the law enforcement information network.

(g) Grants to county concealed weapon licensing boards for expenditure only to implement this act.

(h) Training under [MCL 28.425v(4) ].

(i) Creating and distributing the reporting forms required under [MCL 28.425m].

(j) A public safety campaign regarding the requirements of this act.

In their appellate brief, plaintiffs concede that 2000 PA 381 is not an act directed at meeting existing deficiencies in state funds within the meaning of Const. 1963, art. 2, § 9. Therefore, we confine our analysis to whether 2000 PA 381 is an act appropriating funds to state institutions as contemplated by Const. 1963, art. 2, § 9. Further, our analysis does not consider the merits of the policy supporting 2000 PA 381. It is not within the province of the judiciary to question the wisdom of the Legislature's policy decisions. See American States Ins. Co. v. Dep't of Treasury, 220 Mich.App. 586, 597, 560 N.W.2d 644 (1996).

We begin our analysis against the backdrop of well-settled principles regarding the construction of constitutional provisions. Paramount to our analysis is the maxim that constitutional provisions are to be construed in accordance with "``common understanding.'" American Axle & Mfg., Inc. v. Hamtramck, 461 Mich. 352, 363, 604 N.W.2d 330 (2000) (citation omitted). As this Court recently observed in Reynolds v. Bureau of State Lottery, 240 Mich.App. 84, 86-87, 610 N.W.2d 597 (2000):

"When interpreting the constitution, the primary duty of the judiciary is to ``ascertain as best the Court may the general understanding and therefore the uppermost or dominant purpose of the people when they approved the provision or provisions.'" [Id., quoting Bingo Coalition for Charity—Not Politics v. Bd. of State Canvassers, 215 Mich. App. 405, 409, 546 N.W.2d 637 (1996), in turn quoting Michigan Farm Bureau v. Secretary of State, 379 Mich. 387, 390-391, 151 N.W.2d 797 (1967).]

In addition to the general principles of constitutional construction, we are mindful that "under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed." Kuhn v. Dep't of Treasury, 384 Mich. 378, 385, 183 N.W.2d 796 (1971) (footnote omitted); see also Bingo, supra at 410, 546 N.W.2d 637. However, though we are cognizant that this Court is required to enforce strict compliance with constitutionally mandated procedures that relate to the exercise of the referendum power, we are not permitted to "``stretch' "the language of the constitution to limit the legitimate exercise of that power. Id., quoting Kuhn, supra at 386, 183 N.W.2d 796.

With the foregoing principles in mind, we conclude that 2000 PA 381 is not an "act[ ] making appropriations for state institutions" within the meaning of Const. 1963, art. 2, § 9 and therefore deny plaintiffs' request for a writ of mandamus. We reach this conclusion in light of the principles set forth by our Supreme Court in Detroit Automobile Club v. Secretary of State, 230 Mich. 623, 203 N.W. 529 (1925), and its progeny. Construing Const. 1908, art. 5, § 1, the predecessor of Const. 1963, art. 2, § 9, our Supreme Court articulated governing principles that are of guidance in the instant case. Specifically, the Court framed the relevant inquiry with regard to whether an entity is a state institution in the following terms:

The question is not solely whether the highway department may be correctly termed a State institution, but rather whether, in view of the functions which it exercises, it comes within the meaning of that term as used in the Constitution. [Detroit Automobile Club, supra at 625, 203 N.W. 529.]

The Court went on to observe that the framers of our state constitution, by enacting a provision that limited the exercise of the referendum power to certain pieces of legislation, sought "to enable the State to exercise its various functions free from financial embarrassment." Id.

In Detroit Automobile Club, supra, the legislation at issue imposed a tax of two-cents a gallon on all gasoline sold and used within Michigan. Id. at 624, 203 N.W. 529. The legislation clearly provided that the proceeds of this tax were to (1) "``meet deficiencies in appropriations'" for money owed to the counties, (2) aid in the payment of interest on state highway bonds, and (3) facilitate the "``betterment of the public highways within the State.'" Id.

Concluding that the highway department "exercise[d] State functions," and that it "must have money to carry on its activities," the Court declined to allow a referendum on the legislation. Id. at 626, 203 N.W. 529. Rather, the Court opined:

Without the money appropriated by this act for its immediate use, [the highway department] would cease to function. The constitutional purpose was to prevent such a contingency. And so we hold it a fair conclusion that the framers of the Constitution used the term State institutions in a broad sense intending to include all organized departments of the State to which the legislature had delegated or should delegate the exercise of State functions. [Id. (emphasis supplied).]

As an initial matter, we share plaintiffs' view that a broad interpretation of the term "state institution" requires us to conclude that the Department of State Police falls within this definition. We do not doubt that by enforcing the laws and protecting the citizens of this state, the Department of State Police exercises an invaluable state function. However, we are not persuaded that M.C.L. § 28.425w and M.C.L. § 28.425b(5) provide "appropriations for" a state institution as contemplated by Const. 1963, art. 2, § 9. (Emphasis supplied.)

A close examination of our Supreme Court's decision in Detroit Automobile Club, supra, supports our conclusion. In that case, the Court concluded that "by permitting immediate effect to be given to appropriation acts for State institutions," the framers of the constitution sought to "enable the State to exercise its various functions free from financial embarrassment." Detroit Automobile Club, supra at 625, 203 N.W. 529. Our Supreme Court further observed that immediate effectiveness of the legislation, unhindered by referendum, was warranted because without the funds appropriated by the legislation, "[the state institution] would cease to function." Id. at 626, 203 N.W. 529.^[2]

In our opinion, the instant legislation does not fit within the confines of Const. 1963, art. 2, § 9 because it is not necessary to the continued existence of the Department of State Police. Indeed, our plain reading^[3] of M.C.L. § 28.425w leads us to conclude that the appropriation of $1 million is directed at funding activities specifically associated with the issuance of concealed weapon permits, rather than sustaining the existence of the Department of State Police. The language employed in M.C.L. § 28.425w(1) demonstrates that the $1 million appropriation is reserved for specific, enumerated uses associated with the issuance of concealed weapon permits. For example, a review of M.C.L. § 28.425w reveals that the $1 million is directed at funding, among other things, (1) the distribution of trigger locks and concealed pistol application kits, (2) the fingerprinting and photographing of applicants, (3) maintaining a database that compiles statistics relevant to the issuance of concealed weapon permits, and (4) maintaining a public safety campaign regarding the modified standards set forth in 2000 PA 381.

After a review of these enumerated uses, we conclude that the $1 million appropriation is not intended to "enable the [Department of State Police] to exercise its various functions free from financial embarrassment." Detroit Automobile Club, supra at 625, 203 N.W. 529. We are not of the view that, without the $1 million appropriation, the Department of State Police "would cease to function." Id. at 626, 203 N.W. 529.

Likewise, we reject plaintiffs' contention that M.C.L. § 28.425b(5), which provides for the payment of fees by applicants for concealed weapon permits, constitutes an appropriation for the Department of State Police. MCL 28.425b(5) provides that of a total fee of $60 to be paid by each applicant, $5 is to be "deposit[ed] in the concealed weapon enforcement fund...."^[4] Similarly, M.C.L. § 28.425v(4) provides:

The department of state police shall expend money from the fund only to provide training to law enforcement personnel regarding the rights and responsibilities of individuals who are licensed to carry concealed pistols in this state and proper enforcement techniques in light of those rights and responsibilities. [Emphasis supplied.]

A plain reading of the legislation thus demonstrates that rather than sustaining the core functions of the Department of State Police, the licensing fees collected are aimed at funding activities made necessary by the enactment of the legislation. Further, a plain reading of the legislation does not lead us to conclude that the $45 of each fee to be deposited into the general fund "to the credit of the department of state police" is necessary to the continued function of that department. Absent any indication that the $1 million appropriation in M.C.L. § 28.425w or the fees paid by virtue of M.C.L. § 28.425b(5) are aimed at sustaining core functions of the Department of State Police, we conclude that 2000 PA 381 is not an act making appropriations to a state institution and is therefore subject to referendum.^[5] Subjecting 2000 PA 381 to referendum will not financially embarrass the Department of State Police, nor will it cause the Department of State Police to cease to function.

Alternatively, even if we were to conclude that the statutory expenditures constituted appropriations for state institutions as contemplated by Const. 1963, art. 2, § 9, we would nevertheless hold that the overarching right of the people to their "direct legislative voice," Kuhn, supra at 385, 183 N.W.2d 796, requires that 2000 PA 381 be subject to referendum. A thorough review of the legislation demonstrates that it is directed at modifying the standards for issuance of concealed weapon permits in this state. The process by which an applicant applies for a permit is the sine qua non of the legislation. In contrast, the appropriation measure is peripheral to the core purpose of the legislation. When confronted with legislation that implicates the people's right to accept or reject legislation, we find the following passage from our Supreme Court's decision in Michigan Farm Bureau, supra at 393, 151 N.W.2d 797, to be of guidance.

There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible.... That rule is, in substance, that no court should construe a clause or section of a constitution as to impede or defeat its generally understood ends when another construction thereof, equally concordant with the words and sense of that clause or section, will guard and enforce those ends. [Id., citing Prigg v. Commonwealth of Pennsylvania, 41 U.S. (16 Pet.) 539, 612, 10 L. Ed. 1060 (1842).]

In our view, the construction of Const. 1963, art. 2, § 9 first articulated by our Supreme Court in Detroit Automobile Club, supra, best guards and enforces the people's right to a referendum. Because 2000 PA 381 is not an act making appropriations to state institutions as contemplated by Const. 1963, art. 2, § 9, it is subject to referendum. Plaintiffs' request for a writ of mandamus is denied.

NOTES

[1] Pursuant to our Supreme Court's order of remand, we are called on to give plenary consideration to the issue "whether the referendum sought is with respect to a law ``making appropriations for state institutions or to meet deficiencies in state funds.'" Michigan United Conservation Clubs v. Secretary of State, 463 Mich.____, 625 N.W.2d 377 (2001), quoting Const. 1963, art. 2, § 9.

[2] Although our Supreme Court's interpretation of the referendum power in Detroit Automobile Club, supra, involved Const. 1908, art. 5, § 1, we believe it is instructive in construing Const. 1963, art. 2, § 9, which contains virtually identical language.

The delegates to the 1961 Constitutional Convention are presumed to have known and to have understood the meaning ascribed in these earlier decisions to the language of the 1908 Constitution. This language was retained by them in the 1963 Constitution without modification in response to the earlier decisions. Under well-established principles, it is not open to us to place a new construction on this language. [Bds. of Co. Rd. Comm'rs v. Bd. of State Canvassers, 391 Mich. 666, 676, 218 N.W.2d 144 (1974).]

[3] Well-settled rules of statutory construction require that we examine the plain language of a statutory provision to ascertain the Legislature's intent. See Sington v. Chrysler Corp., 245 Mich.App. 535, 630 N.W.2d 337 (2001).

[4] Although not determinative to our decision in the instant case, we note that in Bds. of Co. Rd. Comm'rs v. Bd. of State Canvassers, 50 Mich.App. 89, 96, 99, 213 N.W.2d 298 (1973), aff'd. 391 Mich. 666, 218 N.W.2d 144 (1974), this Court expressed serious misgivings regarding whether a "fund" is a state institution as contemplated by our constitution. However, the Court of Appeals did not definitively decide the issue. Id. at 99, 213 N.W.2d 298.

[5] Our conclusion is consonant with decisions of our Supreme Court after Detroit Automobile Club, supra, construing the referendum power in the constitution. In all these cases, the appropriations at issue were directly related to the core functioning of the state institution. See, e.g., Moreton v. Secretary of State, 240 Mich. 584, 592, 216 N.W. 450 (1927); Michigan Good Rds. Federation v. State Bd. of Canvassers, 333 Mich. 352, 360, 364, 53 N.W.2d 481 (1952); Bds. of Co. Rd. Comm'rs v. Bd. of State Canvassers, 391 Mich. 666, 670, 218 N.W.2d 144 (1974); Co. Rd. Ass'n of Michigan v. Bd. of State Canvassers, 407 Mich. 101, 116-118, 282 N.W.2d 774 (1979).