Line v. Michigan

173 Mich. App. 720 (1988) 434 N.W.2d 224

LINE
v.
STATE OF MICHIGAN

Docket No. 107743.

Michigan Court of Appeals.

Decided December 19, 1988.

Lyle Andrew Peck, for plaintiffs.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Gary P. Gordon and Richard P. Gartner, Assistant Attorneys General, for defendant.

Before: GRIBBS, P.J., and CYNAR and J.T. KALLMAN,^[*] JJ.

GRIBBS, P.J.

Plaintiffs, convicted felons who are currently serving time in Michigan prisons, filed a complaint for declaratory judgment in Chippewa Circuit Court on July 2, 1987. Plaintiffs sought an order declaring MCL 791.233b; MSA 28.2303(3) (Proposal B) unconstitutional. Proposal B essentially provides that a person convicted and sentenced for certain enumerated crimes is not eligible for parole until the minimum sentence has been served. The lower court granted defendant's subsequent motion for summary disposition, MCR 2.116(C)(8), and plaintiffs now appeal as of right. We affirm.

Although plaintiffs phrase their appeal as containing four issues, the controlling issue of this case is whether our Supreme Court's holding in Consumers Power Co v Attorney General, 426 Mich. 1; 392 NW2d 513 (1986), should be given retroactive effect. In that case, the Court considered the constitutionality of MCL 168.472a; MSA 6.1472(1), which provides:

It shall be rebuttably presumed that the signature on a petition which proposes an amendment to the constitution or is to initiate legislation, is stale and void if it was made more than 180 days before the petition was filed with the office of the secretary of state.

The statute was enacted in 1973. The next year, however, the Attorney General opined that the statute was unconstitutional and unenforceable. OAG, 1973-1974, No 4813, pp 171-174 (August 13, 1974). Twelve years later, in Consumers Power, our Supreme Court affirmed a lower court decision which overruled the opinion of the Attorney General and upheld the constitutionality of the statute.

In the case before us now, plaintiffs contend that Proposal B, which was enacted in 1978, is unconstitutional because many of the signatures on the ballot petition were most likely collected more than six months before the petition was filed.

In determining whether a rule of law should be applied retroactively, the following factors are pertinent: (1) the purpose of the new rule; (2) the general reliance upon the old rule; and (3) the effect of full retroactive application of the new rule on the administration of justice. Chevron Oil Co v Huson, 404 U.S. 97, 106-107; 92 S. Ct. 349; 30 L. Ed. 2d 296 (1971); Rozier v Dep't of Public Health, 161 Mich. App. 591, 599; 411 NW2d 786 (1987), lv den 430 Mich. 860 (1988). See also Griffith v Kentucky, 479 U.S. ___; 107 S. Ct. 708, 713, n 8; 93 L. Ed. 2d 649, 657, n 8 (1987). We believe that all three factors favor prospective application of the decision in Consumers Power.

Moreover, prospective application is preferred over full or limited retroactive application when overruling an established precedent or when deciding an issue of first impression whose resolution was not clearly foreshadowed. Chevron Oil, 404 U.S. 106; People v Phillips, 416 Mich. 63, 68; 330 NW2d 366 (1982); Collins v Dep't of Corrections, 167 Mich. App. 263, 266; 421 NW2d 657 (1988).

The first factor to be considered concerns the purpose of the rule. The purpose of the presumption that signatures are stale and void after 180 days is to "fulfill the constitutional directive of art 12, § 2 that only the registered electors of this state may propose a constitutional amendment [or initiate legislation]." Consumers Power, supra, pp 7-8. The presumption is expressly intended to be rebuttable, but, in this case, the petitions for Proposal B were destroyed long ago. We believe that retrospective application of Consumers Power, which would require proof that the signatures for Proposal B were valid, would be impractical, probably impossible and therefore unjust.

Looking to the second factor, we believe that Consumers Power represents a new rule of law that shkuld only be applied prospectively. The Attorney General's opinion, which Consumers Power overruled, was clearly relied upon by the electorate for a twelve-year period. During that time, numerous ballot petitions were undoubtedly filed in good faith with signatures that had been gathered more than 180 days before.

Finally, as defendant points out, giving retroactive effect to Consumers Power would affect a number of ballot proposals that were filed during the interim period between the Attorney General's opinion and the Consumers Power decision. For example, Proposal c, which exempted food and prescription drugs from the sales tax, was ratified on November 5, 1974 (Const 1963, art 9, § 8); Proposal A, which prohibited throwaway bottles and cans, now codified in MCL 445.572; MSA 18.1206(12); and Proposal G, which provided collective bargaining rights to State Police troopers and sergeants, was ratified on November 7, 1978 (Const 1963, art 11, § 5). It is obvious that the Consumers Power decision was not "clearly foreshadowed." Thus, prospective application of the decision is preferred.

Moreover, in the case before us, the retrospective application of Consumers Power to Proposal B would require reevaluation of the parole status of thousands of incarcerated felons. Consequently, we believe that retrospective application of the Consumers Power decision would have a serious disruptive effect on the administration of justice.

We conclude that, considering all of the factors, the trial court properly refused to give retrospective effect to Consumers Power and granted defendant's motion for summary disposition.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.