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September 30, 2020

A Missed Opportunity to Start Cleaning Up the Michigan Constitution

  • The legislatively initiated constitutional amendment that will be submitted to the voters as Proposal 2020-2 would amend Article I, Section 11, which includes inoperative language. The proposal does nothing to delete that inoperative language.
  • The Michigan Constitution contains several provisions made inoperative by court cases, amendments to the U.S. Constitution, and legislative neglect.
  • It is a shame that the legislators introducing or promoting the proposal to the ballot, did not see fit to use this opportunity for an easy act of constitutional clean up.

On November 3, Michigan voters will be asked to approve two amendments to the state Constitution. Among these is a proposed amendment to Article I, Section 11, which includes language that has long been invalidated because of federal court cases. In fact, several sections in our state’s foundational document are inoperative and/or obsolete.

Since a primary purpose of having written constitutions is to inform citizens of the fundamental law by which they are governed, the Research Council thinks the text of the Michigan Constitution should reflect the actual status of state law. The provisions in the state constitution where the words conflict with current federal and/or state law may be grouped broadly into two categories: (1) inoperative or obsolete provisions that should be deleted, but which need not be replaced by new provisions and (2) inoperative provisions that should be deleted and be replaced by new provisions.

Inoperative and obsolete provisions have been affected by court cases and amendments to the U.S. Constitution. They include a prohibition on same-sex marriage in Article I, Section 25; a requirement contained in Article II, Section 1, that voters be at least 21 years of age; a provision that restricts the right to vote on certain ad valorem tax limitation increases and bond issues to property owners contained in Article II, Section 6; the provision creating a board of supervisors in each county found in Article VII, Section 7; part of the prohibition of public aid to nonpublic schools amended to Article VIII, Section 2; and term limits on Congressional representatives from the state contained in Article II, Section 10.

Inoperative provisions are much fewer in number. Chief among them were the provisions for legislative and congressional redistricting adopted as part of the 1963 Constitution. Having guessed wrong on how the federal courts would rule on one-man-one-vote requirements being adjudicated at the same time the constitution was being drafted, the provisions in Article IV, Sections 2 through 6 were simply ignored until being replaced with the 2018 Voters Not Politicians constitutional amendment.

Other provisions are not obsolete, but they have been ignored and abused to the point of making them inoperative. The first is Article IX, Section 6, which imposes limitations upon local property taxation. The Michigan Supreme Court once said that this provision had been “bruised, beaten and backed to the brink of sterile and forceless words” by the courts, and this remains an accurate description. 

Article IX, Section 29, has been interpreted so narrowly that it precludes most allegations of unfunded mandates because not all local units of government are required to provide the service in question. While Article IX, Section 32, which authorizes taxpayers to file suit in the Michigan Court of Appeals to enforce the 1978 Headlee tax limitation amendment, essentially has been treated with disdain by the Michigan Court of Appeals. Each of these was originally amended to the state constitution by citizen-initiated petitions and haven’t fit neatly into how the legislature and the courts envision operations.

The Citizens Research Council has called attention to the failings of the state Constitution many times over the years. While it would be desirable to amend the Constitution to remove the unconstitutional language in order to assure that all of the provisions in the Constitution are actually operable, neither the legislature nor the voters have placed such a “clean-up” amendment on the ballot. The goal of bringing a question of amending the state constitution is no easy task and usually requires a champion. No one has been willing to expend both the financial and political capital on this task.

This unwillingness is brought to the forefront with the proposed amendment of Article 1, Section 11 this year. The Section reads as follows:

The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The last (italicized) sentence of this section allows for the use of evidence seized outside of a person’s house.  It has been ruled invalid because it conflicts with the Fourth Amendment to the U.S. Constitution.  In People v Pennington, (383 Mich 611; 1970), the Michigan Supreme Court held that this sentence, which allowed certain evidence to be admitted into criminal proceedings, violated the federal exclusionary rule as enunciated by the U.S. Supreme Court in Mapp v Ohio, (367 US 643;1961).

The Citizens Research Council of Michigan does not endorse or oppose issues on the statewide ballot. How voters chose to vote on Proposal 2 will key on the proposed additions of electronic data and communications as property protected from unreasonable search and seizure. It is a shame that the legislators introducing or promoting the proposal to the ballot, did not see fit to use this opportunity for an easy act of constitutional clean up. Surely the sponsors of the joint resolution that sent the proposed constitutional amendment to the voters wanted to keep the proposal simple, but the legislature should have a greater ambition to stewart a clean constitution than we would expect of citizens proposing a constitutional amendment through the petition process.

President

About The Author

Eric Lupher

President

Eric has been President of the Citizens Research Council since September of 2014. He has been with the Citizens Research Council since 1987, the first two years as a Lent Upson-Loren Miller Fellow, and since then as a Research Associate and, later, as Director of Local Affairs. Eric has researched such issues as state taxes, state revenue sharing, highway funding, unemployment insurance, economic development incentives, and stadium funding. His recent work focused on local government matters, including intergovernmental cooperation, governance issues, and municipal finance. Eric is a past president of the Governmental Research Association and also served as vice-chairman of the Governmental Accounting Standards Advisory Council (GASAC), an advisory body for the Governmental Accounting Standards Board (GASB), representing the user community on behalf of the Governmental Research Association.

A Missed Opportunity to Start Cleaning Up the Michigan Constitution

  • The legislatively initiated constitutional amendment that will be submitted to the voters as Proposal 2020-2 would amend Article I, Section 11, which includes inoperative language. The proposal does nothing to delete that inoperative language.
  • The Michigan Constitution contains several provisions made inoperative by court cases, amendments to the U.S. Constitution, and legislative neglect.
  • It is a shame that the legislators introducing or promoting the proposal to the ballot, did not see fit to use this opportunity for an easy act of constitutional clean up.

On November 3, Michigan voters will be asked to approve two amendments to the state Constitution. Among these is a proposed amendment to Article I, Section 11, which includes language that has long been invalidated because of federal court cases. In fact, several sections in our state’s foundational document are inoperative and/or obsolete.

Since a primary purpose of having written constitutions is to inform citizens of the fundamental law by which they are governed, the Research Council thinks the text of the Michigan Constitution should reflect the actual status of state law. The provisions in the state constitution where the words conflict with current federal and/or state law may be grouped broadly into two categories: (1) inoperative or obsolete provisions that should be deleted, but which need not be replaced by new provisions and (2) inoperative provisions that should be deleted and be replaced by new provisions.

Inoperative and obsolete provisions have been affected by court cases and amendments to the U.S. Constitution. They include a prohibition on same-sex marriage in Article I, Section 25; a requirement contained in Article II, Section 1, that voters be at least 21 years of age; a provision that restricts the right to vote on certain ad valorem tax limitation increases and bond issues to property owners contained in Article II, Section 6; the provision creating a board of supervisors in each county found in Article VII, Section 7; part of the prohibition of public aid to nonpublic schools amended to Article VIII, Section 2; and term limits on Congressional representatives from the state contained in Article II, Section 10.

Inoperative provisions are much fewer in number. Chief among them were the provisions for legislative and congressional redistricting adopted as part of the 1963 Constitution. Having guessed wrong on how the federal courts would rule on one-man-one-vote requirements being adjudicated at the same time the constitution was being drafted, the provisions in Article IV, Sections 2 through 6 were simply ignored until being replaced with the 2018 Voters Not Politicians constitutional amendment.

Other provisions are not obsolete, but they have been ignored and abused to the point of making them inoperative. The first is Article IX, Section 6, which imposes limitations upon local property taxation. The Michigan Supreme Court once said that this provision had been “bruised, beaten and backed to the brink of sterile and forceless words” by the courts, and this remains an accurate description. 

Article IX, Section 29, has been interpreted so narrowly that it precludes most allegations of unfunded mandates because not all local units of government are required to provide the service in question. While Article IX, Section 32, which authorizes taxpayers to file suit in the Michigan Court of Appeals to enforce the 1978 Headlee tax limitation amendment, essentially has been treated with disdain by the Michigan Court of Appeals. Each of these was originally amended to the state constitution by citizen-initiated petitions and haven’t fit neatly into how the legislature and the courts envision operations.

The Citizens Research Council has called attention to the failings of the state Constitution many times over the years. While it would be desirable to amend the Constitution to remove the unconstitutional language in order to assure that all of the provisions in the Constitution are actually operable, neither the legislature nor the voters have placed such a “clean-up” amendment on the ballot. The goal of bringing a question of amending the state constitution is no easy task and usually requires a champion. No one has been willing to expend both the financial and political capital on this task.

This unwillingness is brought to the forefront with the proposed amendment of Article 1, Section 11 this year. The Section reads as follows:

The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The last (italicized) sentence of this section allows for the use of evidence seized outside of a person’s house.  It has been ruled invalid because it conflicts with the Fourth Amendment to the U.S. Constitution.  In People v Pennington, (383 Mich 611; 1970), the Michigan Supreme Court held that this sentence, which allowed certain evidence to be admitted into criminal proceedings, violated the federal exclusionary rule as enunciated by the U.S. Supreme Court in Mapp v Ohio, (367 US 643;1961).

The Citizens Research Council of Michigan does not endorse or oppose issues on the statewide ballot. How voters chose to vote on Proposal 2 will key on the proposed additions of electronic data and communications as property protected from unreasonable search and seizure. It is a shame that the legislators introducing or promoting the proposal to the ballot, did not see fit to use this opportunity for an easy act of constitutional clean up. Surely the sponsors of the joint resolution that sent the proposed constitutional amendment to the voters wanted to keep the proposal simple, but the legislature should have a greater ambition to stewart a clean constitution than we would expect of citizens proposing a constitutional amendment through the petition process.

President

About The Author

Eric Lupher

President

Eric has been President of the Citizens Research Council since September of 2014. He has been with the Citizens Research Council since 1987, the first two years as a Lent Upson-Loren Miller Fellow, and since then as a Research Associate and, later, as Director of Local Affairs. Eric has researched such issues as state taxes, state revenue sharing, highway funding, unemployment insurance, economic development incentives, and stadium funding. His recent work focused on local government matters, including intergovernmental cooperation, governance issues, and municipal finance. Eric is a past president of the Governmental Research Association and also served as vice-chairman of the Governmental Accounting Standards Advisory Council (GASAC), an advisory body for the Governmental Accounting Standards Board (GASB), representing the user community on behalf of the Governmental Research Association.

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