General Revision of the Michigan Constitution

Report 360-01 ( February 2010 ) 4 pages

The Citizens Research Council of Michigan has released the first of a series of papers analyzing issues that voters may use to decide their vote on Proposal 1 on the November 2, 2010 ballot. Proposal 1 will ask Michigan voters whether a constitutional convention should be convened for the purpose of a general revision of the state Constitution.

“Among the many issues a constitutional convention may choose to address,” said CRC President Jeffrey Guilfoyle, “Are the roles of the executive and legislative branches in the budget process, the balanced budget requirements, and the operations of state government when appropriations are not enacted before the beginning of each fiscal year.”

The 1963 Michigan Constitution provides in Article XII, Section 3, that in 1978 and every 16 years thereafter the question of a general revision of the constitution shall be submitted to the electors of the state.

A Brief Michigan Constitutional History
Report 360-02 ( February 2010 ) 4 pages

The people of Michigan have adopted four constitutions (1835, 1850, 1908 and 1963), have rejected two (1867 and 1873) and failed to approve the calling of a convention on 11 occasions (most recently in 1994).

A Brief Michigan Constitutional History describes the successful and unsuccessful votes to convene constitutional conventions and approve revised constitutions. It also compares the issues that led to a successful convening and revision of the constitution in the early 1960s to the issues voters are likely to consider in deciding this year’s question.

“It is likely that Michigan would have had more frequent revisions to the constitution except for requirements for extraordinary majorities needed to convene constitutional conventions,” said Eric Lupher, CRC’s Director of Local Affairs. “From 1850 until 1960, calling a convention required approval of a majority of those voting at the election and not just a majority of those voting on the question. In effect, failure to vote on the ballot question was counted as a vote against the calling of a convention under this provision. Several votes in the 1940s and 1950s gained a majority of votes on the issue, but not a majority of those voting at the election.”

Amending the Michigan Constitution: Trends and Issues
Report 360-03 ( March 2010 ) 11 pages

The 1963 Michigan Constitution has been amended 31 times since it went into effect in January 1964, nearly doubling its length and adding to its complexity. Much of the additional length has consisted of changes that could have been made statutorily or that simply elevated statutory provisions to constitutional status.

Amending the Michigan Constitution: Trends and Issues discusses the process for amending Michigan’s Constitution, which includes the initiative, in which citizens may circulate petitions that force proposed constitutional amendments (or statutes) onto the ballot, and the referendum, in which legislatures place such issues before the voters. The paper also describes the various proposed and enacted amendments to the 1963 Constitution considered by Michigan voters since its enactment.

“Amendments to the 1963 Constitution can be broadly categorized into 3 periods,” said former CRC President Earl Ryan. “Early amendments focused on the powers and structure of government. From the mid-1970s to the mid 1990s, amendments arose from the so-called ‘Tax Revolt,’ and more recently amendments have been related to social issues including same-sex marriage, affirmative action, and gaming.”

Article I — Declaration of Rights
Report 360-04 ( March 2010 ) 5 pages

This paper is the first in CRC’s efforts to look at each article of the Michigan Constitution. In doing so, CRC takes no position on the question of calling a constitutional convention. It is hoped that examination of the matters identified in this paper will promote discussion of vital constitutional issues and assist citizens in deliberations on the question of calling a constitutional convention.

The powers of a state government are plenary, except to the extent they are constitutionally limited. The purpose of a bill of rights is to enumerate those basic individual liberties which the people intend to be secure from impairment by the actions of their government. Both the Constitution of the United States and the Michigan Constitution contain such enumerations. This analysis examines the dual role which a state bill of rights fulfills: according concurrent protection to individual liberties which also are protected under the federal Constitution and serving as an independent source for individual liberties which are not accorded recognition at the federal level. It also examines recent trends in amending Article I of the 1963 Michigan Constitution.

“The first 24 sections of Article I set forth basic individual liberties which are to be secure from impairment by the actions of state government,” said Eric Lupher, CRC’s Director of Local Affairs. “The final three sections in Article I, which have been added since 2004, move beyond defining basic individual liberties to be protected. Supporters of the amendments creating restrictions on same sex marriage, banning certain affirmative action programs, and authorizing human embryo and embryonic stem cell research have used amendments to the constitution to make change more difficult if the political winds shift in the future. These three amendments are examples of statutory material being enshrined in the Constitution to protect against future changes. ”

Article II – Elections
Report 360-05 ( April 2010 ) 9 pages

Article II deals with elections, and contains two original sections that are obsolete and one section added by initiative petition, the intent of which the United States Supreme Court has determined to be unconstitutional. Article II also contains sections pertaining to direct democracy: recall, initiative, and referendum. This article also establishes, but does not define the role of, the State Board of Canvassers, whose members have on several occasions challenged its traditional ministerial role.

The language of a state constitution should reflect the reality of the law and should be understandable to citizens. Michigan’s constitutional provisions for voting age, residency requirements, property ownership, and term limits for the state’s congressional delegation are inoperative because of conflicts with the U.S. Constitution.

Although the role of the State Board of Canvassers is currently defined statutorily, a constitutional convention may wish to clarify the extent of the board’s authority, especially as it relates to the provisions for direct democracy.

Finally, a constitutional convention may wish to consider whether Michigan should continue to allow recalls, initiatives, and referenda. If their use is continued, a con-con could address the ease or difficulty of placing questions on the ballot.

Article III — General Government
Report 360-06 ( April 2010 ) 4 pages

Most of Article III contains provisions relating to the general structure of the state government, including designation of a state capital, separation of powers into three branches, and authorization for the governor and legislature to ask the opinion of the state supreme court on important questions of law.

Should a constitutional convention be convened, it would examine the provisions of Article III, General Government. Among the eight sections in Article III are three that are of special interest from a public policy perspective (and one of those only because of the use of the word “militia,” the popular association of which has changed over time).

Section 4 provides that “The militia shall be organized, equipped and disciplined as provided by law.” A constitutional convention could clarify the language of Article III, Section 4 to identify the Michigan National Guard as this state’s militia.

Section 5 allows the state and local governments to enter into agreements with other states, the United States, Canada, or their political subdivisions, for the performance, financing, or execution of their functions, subject to other provisions of the constitution and general law.

Section 6 prohibits the state from participating in internal improvements, except as provided by law. Michigan continues to be one of many states with constitutions that include an internal improvements clause, which limits the state’s ability to engage in capital projects. Judicial interpretations of states’ internal improvements clauses are based on “essential” government purposes, “predominantly” governmental purposes, or other defining terms.

While the exception provided allows projects that receive legislative approval, the constitutional convention may wish to review the internal improvements clause to determine whether the conditions that justified the prohibition are still persuasive, and whether there are better approaches to protect taxpayers and ensure provision of modern infrastructure (e.g. high speed Internet connections) that is necessary to economic competitiveness and prosperity.

Article IV — Legislative Branch
Report 360-07 ( May 2010 ) 11 pages

The 2010 U.S. Census is on-going, the results of which will be used over the next decade for a host of important governmental functions, including determining Michigan’s representation in the U.S. House of Representatives and allocating billions of dollars of federal aid to the state. The census results also will be used to determine the size and geographic structure of Michigan’s 38 senatorial and 110 house districts.

The process of determining legislative districts will be carried out by the Michigan Legislature because the current constitutional provisions addressing the topic were ruled unconstitutional over 45 years ago and absent constitutional language to the contrary, the responsibility for crafting these districts falls to the legislative branch of government.

In light of the invalid language, Craig Thiel of CRC said “The current constitution is silent on three important issues: 1) it does not specify what body, agency, or official is responsible for the process; 2) it does not list the state-specific standards that govern the process; and 3) it does not indicate how often the process is to take place.”

Given the importance of the matter to the electoral process, a constitutional convention, should one be convened, would most likely concentrate attention on the provisions in Article IV that deal with redistricting. At a minimum, a convention would be expected to eliminate the current language and replace it with valid language that addresses: who, how, and when.

The latest in CRC’s series of papers on constitutional issues, Article IV – Legislative Branch, analyzes the deficiencies related to redistricting and other provisions of Article IV. In addition to redistricting, Article IV also contains provisions that involve the legislative institution itself; its structure, organization, and procedures. It is likely a convention would weigh in on issues dealing with size of the two legislative chambers (Sections 2 and 3), how often the body meets in session (e.g., full-time or part-time), and setting legislative compensation levels (Section 12).

Michigan’s restrictive, life-time legislative term limitations might be an issue considered by a constitutional convention. Michigan adopted term limits for senate (2 terms) and house (3 terms) members in 1992 (Section 54) and while term limit revisions in other states have not taken place, the issue continues to be debated in Michigan.

Article V — Executive Branch
Report 360-08 ( May 2010 ) 7 pages

At the same time that Michigan voters will be asked whether or not to call a constitutional convention, voters will be asked to elect a new chief executive for state government. In addition to Governor Granholm, three other statewide-elected executive branch officials (lieutenant governor, secretary of state, and attorney general) will be required to exit their respective offices due to the term limitation provisions provided for in Article V, Section 30. This complete turnover in the executive branch of state government will usher in new officials that will be responsible for executing state laws and delivering services to Michigan residents.

“A constitutional convention, if called, would likely examine the broad issues dealing with the powers of the governor and other officials as they pertain to the structure and organization of the executive branch of government,” stated Craig Thiel CRC’s Director of State Affairs.

For 47 years, Michigan state government has operated under a constitutional framework that centralizes executive power in a single office and provides for a strong governor. With the exception of two amendments to Article V, the original constitutional provisions governing the operations of the executive branch remain basically intact. Despite this consistency over the years, a number of issues might be considered by a potential constitutional convention charged with looking at Article V dealing with: executive reorganization powers, single versus plural executive, filling legislative vacancies, office vacancies of executive officials, the governor’s role in the state budget process, and the governor’s appointment powers.

While it is likely that a con-con would examine these and other issues related to Article V of the 1963 Constitution, Craig Thiel added, “Nothing in Article V has prevented the executive branch from governing effectively since its enactment nearly 50 years ago and no issues have risen to the level of crisis that would suggest immediate modification is necessary.”

Article VI — Judicial Branch
Report 360-09 ( May 2010 ) 10 pages

“The judicial system is operating adequately and can continue into the future with the current constitutional provisions without pause,” said Eric Lupher, CRC’s Director of Local Affairs. “However, some of the issues critics identify in Article VI may rise to higher levels of importance in coming years. The increasingly political and tainted campaigns for Supreme Court justices may diminish the perception of an independent, impartial judiciary capable of dispensing justice to all. Continuance of this trend may create a rallying call to reform the methods of selecting judges.”

At the November election, in addition to electing all new executive officers and the turnover that will occur in the legislature because of term limits, Michigan voters will be voting on two Supreme Court justice seats and a number of appeals court, circuit court, probate court, and district court judgeships. The election or appointment of judges is a provision of the current Constitution that a constitutional convention might consider. “A highly politicized judicial race on the non-partisan ballot may bring this issue to the forefront when voters are deciding how to vote on the question of calling a constitutional convention,” said Mr. Lupher.

The 1963 Constitution made several changes to the judicial branch of government. It created the concept of “one court of justice,” in which all courts are organized and judicial authority ultimately rests with the Supreme Court. The new document also established the court of appeals as an intermediate appellate court between the trial courts and the Supreme Court. These changes would likely draw the attention of a constitutional convention.

Court funding might be included among the issues considered at a convention because the cost of operating Michigan’s trial court system has increased at a pace that imposes tremendous burden on the local governments – counties and cities – charged with funding responsibility.

“A unified state funding system to parallel the “one court of justice” established by the 1963 Constitution would alleviate the mandated costs that those governments must bear and enable the court system to achieve efficiencies in operations that are otherwise unobtainable,” said Mr. Lupher.

Article VII — Local Government
Report 360-10 ( July 2010 ) 11 pages

In addition to providing authority and power to the different branches of state government, the Michigan Constitution authorizes and empowers local governments. These provisions range from establishing the structure and governance fo counties and townships to the provision of home rule powers for cities, villages, and counties.

One of the most significant issues a constitutional convention may address is balancing the powers of the state to empower, oversee, and control local governments and the local governments’ interest in exercising the home rule powers currently provided in the constitution. Legislative action, administrative rules, and court rulings have eroded the spirit of home rule as it was originally envisioned by the drafters of the 1908 and 1963 Constitutions. Delegates to a 2011 convention would likely provide clarity to the proper balance of the state and local government powers.

“With the financial troubles facing local governments and the ever-present need for economic development,” said Eric Lupher, CRC’s Director of Local Affairs, “a constitutional convention is likely to spend time looking at the structure of local government. Potential reforms would likely focus on reducing the number of governmental units and streamlining the provision of governmental services.”

The current provisions for county boards of supervisors are inoperable because they violate the ‘one person, one vote’ principle of the U.S. Constitution. It could be expected that a convention would attempt to provide greater direction on the conflict between the authority of local governments to control the use of their highways and public places by utilities and the power of the state to regulate those same utilities. Finally, a convention may choose to examine the need to address constitutional provisions related to multipurpose special authorities and the removal of public officials.

Article VIII — Education
Report 360-11 ( August 2010 ) 7 pages

According to the Tenth Amendment in the Bill of Rights to the United States Constitution, education is a power reserved to the states. Therefore, while the federal government plays a role in education, the ultimate authority over education resides with state governments. The responsibility of the state for elementary and secondary education and higher education is found in Article VIII of the Michigan Constitution. Article VIII outlines the roles of the state legislature, governor, state board of education, and superintendent of public instruction in regards to elementary and secondary education. It also addresses governance and statewide planning and coordination of higher education.

Article VIII has not been amended heavily over the years and does not have many inoperable provisions that need to be addressed, but a review of it does raise issues that would likely be addressed by a constitutional convention. One of the most significant issues a constitutional convention might address is current language in the constitution requiring the state legislature to maintain and support a system of public elementary and secondary education. Current language has not provided sufficient grounds for judicial intervention in school funding, but stronger language may make the state vulnerable to court challenges. “With the funding cuts to schools in recent years, some advocates of more funding for schools may be impatient with the political process and seek to increase funding through judicial intervention by inserting stronger language into the constitution as it relates to the state’s responsibility to provide and support a system of free public education,” said Jill Roof, CRC’s Research Associate.

Additionally, the governance structure for elementary and secondary education may be reviewed, including the roles and authority of the state legislature, governor, and state board of education. “The delegates at the 1961 constitutional convention believed they were giving the state board of education a broad grant of authority,” Roof said, “but the board in practice has taken on a consultative and advisory role, with the state legislature having ultimate authority over education.”

Finally, the governance of the state’s public universities and community colleges would likely be reviewed, as well as statewide planning and coordination of higher education, which is currently very limited.

Article IX — Finance and Taxation
Report 360-12 ( August 2010 ) 15 pages

The Great Recession has had significant negative effects on state and local government services in Michigan, including public education, as tax revenues declined in response to the slowdown in economic activity. As governments struggle to balance their annual budgets during these austere times, they do so within the confines of the constitutional limitations contained within Article IX. These limitations range from prescribing the proportion of value at which property may be taxed, to requiring voter approval before units of local government may increase certain taxes and indebtedness, to limiting the forms and rates of taxation (state and local), to specifying how the revenues from certain taxes are to be expended.

Prior to the recent economic slide, Article IX has been the subject of the most attempts to amend the Constitution (29 proposed amendments), indicating the importance of the issues contained therein. The article has been successfully amended 10 times, most recently in 2006. The two most significant amendments were Proposal E of 1978 (Headlee Amendment) and Proposal A of 1994; both dealt with multiple sections and both created tax and/or spending limitations. It is expected that given the State of Michigan’s fiscal challenges over the past eight years and the public’s general interest in state and local tax and finance issues, a constitutional convention would spend considerable time addressing the complex and varied provisions of Article IX.

“In addition to the specific tax and finance provisions of Article IX, a convention is likely to address the level of complexity and detail contained in the current constitution,” said Eric Lupher, CRC’s Director of Local Affairs. “The inclusion of finite detail in the Constitution results in a great deal of complexity in the management of state and local fiscal affairs. Furthermore, the level of detail in the state’s foundational legal document effectively limits the legislature’s discretion with respect to carrying out its fundamental “power of the purse.”

Administration of the property tax, the main revenue source for local governments and an already complex tax by its very nature, has been made more complex by a series of constitutional amendments which have had the effect of layering tax limitations on top of existing provisions. “A constitutional convention may want to begin with a goal of eliminating some of the complexity of the property tax system,” Lupher said.

Article X — Property
Report 360-13 ( September 2010 ) 4 pages

The Citizens Research Council of Michigan has released the thirteenth in a series of papers focusing on state constitutional issues. CRC is examining the state’s constitution in anticipation of this November’s vote on whether Michigan should convene a constitutional convention. This paper focuses on Article X of the 1963 Constitution – Property.

Article X has remained largely unchanged since adoption of the 1963 Constitution. The 2006 amendment of Section 2, dealing with eminent domain, has been the only amendment to Article X.

Eminent domain ranks as one of the governmental powers most likely to create sentiments of expanded government. The perceived abuse of that power-when governments use of that power was permitted to extend to economic development-resulted in a 2006 constitutional amendment curtailing such uses.

A constitutional convention could examine the issue of eminent domain and the difficulty of balancing the legitimate need for government taking with the protection of property owners rights. Changes that create more protections for property owners could make it more difficult and more expensive for governments to exercise eminent domain. Some might attempt to lessen the cost to governments in exercising eminent domain without creating additional opportunities for its use in economic development. Many might feel that it is too soon to judge whether the 2006 amendment created a proper balance and suggest it should be given more time as is.

“Nothing in Article X has become obsolete nor in violation of provisions in the U.S. Constitution,” said Eric Lupher, CRC’s Director of Local Affairs. “Proposal 2006-4 received overwhelming support from the voters as a tool to end the perceived abuse of eminent domain. Voters might be concerned about protecting provisions recently amended to the Constitution when they are considering the need for a constitutional convention.”

Article XI – Public Officers and Employment
Report 360-14 ( September 2010 ) 6 pages

The Citizens Research Council of Michigan has released the fourteenth analysis in a series of papers focusing on constitutional issues. CRC is examining the state’s Constitution in anticipation of this November’s vote on whether Michigan should convene a constitutional convention. This paper focuses on Article XI of the 1963 Constitution – Public Officers and Employment.

Article XI has been amended only once since adoption of the 1963 Constitution – a 1978 amendment to Section 5 provided enlisted state police personnel with collective bargaining and binding arbitration. An unsuccessful amendment in 2002 would have provided the same rights to all other classified state employees.

Despite the relatively few times that Article XI has been considered for amendment, it is likely that a constitutional convention would discuss and review a number of issues pertinent to the topic of public employment, including the state’s civil service system and ethics provisions for public officials.

Michigan’s civil service system (Section 5), considered one of the strongest in the nation because of the significant amount of constitutional detail devoted to its composition, authority, and function, has operated without major challenges over the past 46 years; however, a convention would examine provisions related to collective bargaining for state employees, automatic funding for the Civil Service Commission, and legislative control of civil servant compensation. A convention also might be expected to consider introducing ethics provisions to the constitution. These might include restrictions on when former state officials can engage in lobbying, personal financial disclosure for elected officials, and creation of a statewide ethics commission with meaningful enforcement authority.

“Trust in government officials is key to a thriving democracy, functioning bureaucracy, and a true sense of representation on the part of citizens,” said Craig Thiel, CRC’s Director of State Affairs, “and Article XI has provided a sound foundation for these desirous characteristics of government in Michigan.” Regardless of the outcome of the vote in November, Article XI, as currently written, can be expected to serve the voters well for some time to come.

Article XII – Amendment and Revision
Report 360-15 ( October 2010 ) 8 pages

The Citizens Research Council of Michigan has released the fifteenth paper in a series focusing on constitutional issues. CRC is examining the state’s Constitution in anticipation of this November’s vote on whether Michigan should convene a constitutional convention. This paper focuses on Article XII of the 1963 Constitution – Amendment and Revision.

Alteration of individual provisions or provisions related to each other is called amendment. More extensive change, altering several unrelated provisions, is called revision. Article XII of the 1963 Michigan Constitution sets forth the ways in which amendment and revision of the basic Michigan governing document may occur.

The basic question concerning the process of altering the Michigan Constitution is whether it is, by some standard, too easy to do so. The 1963 Constitution has been amended 31 times since its adoption and, while this frequency does not appear to be out of line with other states, it may be argued that the Michigan Constitution is nevertheless accumulating a disproportionate number of provisions that should have been left to statute if, in fact, they should have been adopted at all. In addition, the Michigan Constitution has become a target of national groups wishing to establish their favored policies in the constitutions of those states that have the initiative.

“The threshold issue in any discussion of whether to make the Michigan Constitution more difficult to amend is whether to retain the voter initiative,” stated Jeffrey Guilfoyle, President of the Citizens Research Council of Michigan. “If so, should obstacles be considered that would maintain the fundamental, enduring nature of a constitution but at the same time recognize the necessity of keeping it vital and relevant? Such obstacles might include higher signature requirements, signature distribution requirements, or extraordinary election requirements.”

Statewide Issues on the November General Election Ballot: Proposal 2010-01
Report 360-16 ( October 2010 ) 2 pages

The Citizens Research Council of Michigan has released the sixteenth paper in a series focusing on constitutional issues. CRC is examining the state’s Constitution in anticipation of this November’s vote on whether Michigan should convene a constitutional convention.

Over the past nine months, CRC has laid out the process that is established for a constitutional convention, looked at Michigan’s constitutional history, and analyzed each article of the constitution. We have identified obsolete provisions in our current constitution and issues that are likely to be at the forefront of a constitutional convention. This final paper pulls all of the previous papers together for a quick and easy look at the ballot question before the voters.

“Our analysis of the 1963 Michigan Constitution did not identify anything that could be identified as a constitutional crisis,” said Jeffrey P. Guilfoyle, CRC’s President. “But there are many issues that could be addressed to improve the operations of state and local governments in our state.”

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