Among other important roles, a constitution establishes the branches of government, grants them powers, and places restrictions on them.  Many restrictions are often rooted in past experiences, some from which negative results ensued.  Certain provisions of the Michigan Constitution, like many other constitutions, are sufficiently ambiguous so as to invite interpretation.  Such is the case with a provision that controls state appropriations for private purposes.

The 1963 Michigan Constitution requires a two-thirds affirmative vote from both chambers of the Michigan Legislature to appropriate public money for a private purpose.  This provision dates back to the 1850 Constitution.  Section 30 restricts the Legislature’s “power of the purse” authority and is intended to safeguard against possible misuse of public funds, while at the same time allowing a degree of flexibility under special circumstances through the requirement of the extraordinary vote in each house.

While the 160-year-old vote threshold requirement is clear, what is not so clear is what constitutes a “private purpose.”  A $2.5 million item contained in the current year state budget raises the question, “What is a private purpose appropriation?”

The appropriation in question relates to the Fiscal Year 2017 School Aid Budget (Sec. 152b of Public Act 249 of 2016).  Specifically, a $2.5 million General Fund appropriation to reimburse nonpublic schools for the costs of compliance with state health and safety mandates.  This funding was included in the current year budget following the release of a 2014 report documenting the various state mandates involved with the operation of nonpublic K-12 schools, including student health, student or building safety, accountability, and educational requirements.

Almost immediately after the budget was signed by the Governor in June, the appropriation generated considerable interest within the K-12 education community.  Some argued that it violated Michigan’s constitutional prohibition against aid to nonpublic schools (commonly referred to as “parochiaid”) under Article VIII, Section 2 of the 1963 Michigan Constitution.  In response to the legal questions swirling around the spending item, Governor Snyder requested, in July, that the Michigan Supreme Court issue an advisory opinion regarding the constitutionality of the appropriation.   After reviewing briefs regarding the request for such an opinion, the Court denied the Governor’s opinion request on October 5, 2016.  Since that time, some public school interests have suggested that they may file a lawsuit challenging the appropriation.

One issue that was not raised in any of the briefs questioning the legality of the $2.5 million appropriation is whether it complied with the “private purpose” appropriation provision of Article IV, Section 30 of the Constitution.  Examining this question involves a two-part inquiry.  Specifically, determining compliance with Section 30 involves, 1) examining the actual vote count, and 2) determining whether the purpose behind the appropriation is “private,” as opposed to “public,” in nature.

Turning to the first part of the Section 30 inquiry, the legislative history reveals that Senate Bill 801 of 2016 received 74 “yeas” and 34 “nays” in the House of Representatives, thus meeting the two-thirds affirmative vote threshold required under Section 30 for a “private” appropriation to be valid.

However, the final vote in the Senate, 20 “yeas” and 17 “nays,” fell short of the supermajority requirement for “private” appropriations.  Because Section 30 requires both chambers to approve a “private” appropriation by a two-thirds vote, the constitutional vote threshold was not met.  (Incidentally, this raises the question of how the appropriation act could have an October 1 effective date given the fact that “immediate effect” can only be granted to those bills that receive a two-thirds vote in both chambers.)

Of course, if the budget bill had garnered the requisite votes in both chambers, the second part of the Section 30 inquiry (i.e., “public” vs. “private”) would be moot.  But, the vote threshold was not met in this case.  Therefore, the question of whether the appropriation is intended to serve a “private purpose” takes on greater significance in light on Section 30.

While the legislative vote history is clear from the official journals of both chambers, these resources do not provide any insight into the purpose for the specific appropriation and its Section 30 validity.  Such insight can be gleaned from the language in the budget bill accompanying the appropriation.

Section 152b of Public Act 249 describes the intent of the appropriation: the funds are to be distributed “to reimburse costs incurred by nonpublic schools as identified in the nonpublic school mandate report.”  Further, the section states that the funds “are for purposes related to education, are considered to be incidental to the operation of a nonpublic school, are non-instructional in character, and are intended for the public purpose of ensuring the health, safety, and welfare of the children in nonpublic schools (emphasis added).”  Based on the plain reading of the language, it is clear that the funds will go to “private” entities (i.e. nonpublic schools) intended to serve a  “public” purpose.

While the language provides valuable insight into the Legislature’s intent for the appropriation, it is by no means the only, or final, arbiter of the funding’s main purpose.  An alternative interpretation might reasonably posit that the funding is going to private schools to cover expenses previously covered by private dollars benefiting private school students.  Therefore, the appropriation’s purpose is predominately private and not public.

Some insight into the question of what constitutes a private purpose appropriation can be gained from reviewing previous court rulings pertaining to Section 30.   In one such instance (Advisory Opinion on Constitutionality of 1975 P.A. 227), the Michigan Supreme Court found that if an appropriation predominately services a public purpose then it is NOT an appropriation for a private purpose.  Further, the Court held that defining “public purpose” is “primarily the responsibility of the Legislature.”  In this light, the language attached to the $2.5 million appropriation takes on more weight.

In another case, Gaylord v Gaylord City Clerk, the Court opined that just because certain people benefit from an appropriation does not mean that the spending is lacking a public purpose.  In other words, the Court found that larger societal benefits arising from public spending, even if private parties gain benefits, can be the determining factor for purposes of Section 30 validity.  In the current instance, the State of Michigan has an interest in the safety of all school-age children, regardless of what type of school they attend.

While there has been considerable attention given to the $2.5 million appropriation for nonpublic schools based on Michigan’s constitutional “parochiaid” prohibition, there appears to be some legal uncertainty surrounding its compliance with respect to Article IV, Section 30.  This spending item provides another opportunity to consider the question “What is a private purpose appropriation?”

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