Citizens Protecting Michigan's Constitution v. Secretary of State
921 N.W.2d 247, 503 Mich. 42 (2018)
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Rule of Law:
A voter-initiated constitutional proposal is a permissible "amendment" under Const 1963, art 12, § 2, so long as it does not propose changes that significantly alter or abolish the form or structure of government in a manner equivalent to creating a new constitution. A change that reallocates a specific power, such as redistricting, does not amount to a new constitution if it aligns with a previously established constitutional framework.
Facts:
- The 1963 Michigan Constitution established a bipartisan commission on legislative apportionment to draw legislative district lines.
- In the 1960s, the U.S. Supreme Court decision in Reynolds v. Sims established the "one person, one vote" principle, rendering the apportionment formulas in the Michigan Constitution unconstitutional.
- In 1982, the Michigan Supreme Court, in In re Apportionment of State Legislature-1982, held that the apportionment commission was not severable from the unconstitutional formulas and was therefore inactive.
- Following the deactivation of the commission, the Michigan Legislature assumed responsibility for the redistricting process.
- A ballot-question committee, Voters Not Politicians (VNP), launched an initiative petition drive to amend the state constitution.
- The VNP proposal sought to create a new 13-member independent citizens redistricting commission, comprised of Republicans, Democrats, and independents, to draw state and federal legislative districts based on new criteria.
- VNP gathered a sufficient number of signatures from registered electors to qualify the proposal for placement on the November 2018 general election ballot.
Procedural Posture:
- Citizens Protecting Michigan's Constitution (CPMC) filed a complaint in the Michigan Court of Appeals for a writ of mandamus to direct the Secretary of State and Board of State Canvassers to reject the VNP proposal.
- VNP intervened as a defendant and filed a cross-complaint seeking a writ of mandamus to compel the proposal's placement on the ballot.
- The Court of Appeals, an intermediate appellate court, unanimously denied CPMC's request, granted VNP's request, and ordered the proposal to be placed on the November 2018 general election ballot.
- CPMC, as appellant, sought leave to appeal the Court of Appeals' decision to the Michigan Supreme Court, the state's highest court.
- The Michigan Supreme Court granted leave to appeal to consider whether the proposal was a permissible amendment or an impermissible revision.
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Issue:
Is a voter-initiated proposal to create an independent citizens' redistricting commission, which removes redistricting power from the Legislature and amends the vesting clauses for the three branches of government, a 'general revision' of the Constitution that can only be proposed by a constitutional convention?
Opinions:
Majority - Viviano, J.
No. A voter-initiated proposal is a permissible amendment if it does not significantly alter or abolish the form or structure of government in a manner tantamount to creating a new constitution. The court establishes a 'new-constitution test,' reasoning that the text of Article 12 distinguishes between 'amendments' which add to or abrogate existing provisions, and the output of a 'convention,' which can be a new 'constitution.' Therefore, an amendment cannot be the functional equivalent of a new constitution. The VNP proposal is not equivalent to a new constitution because it is materially similar to the commission that the people approved in the 1963 Constitution, which was later judicially deactivated. The proposal does not fundamentally alter the branches' powers relative to the 1963 Constitution's original design; the Legislature's current role in redistricting is merely a judicial stopgap, not a constitutionally-granted power. The changes to the branches' vesting clauses are not a radical restructuring but are necessary to harmonize the proposal with the rest of the constitution.
Dissenting - Markman, C.J.
Yes. The proposal constitutes a 'general revision' of the Constitution and can only be enacted through the convention process. The proper analysis is qualitative, focusing on whether a proposal 'fundamentally' alters the operation of government. The majority errs by comparing the VNP proposal to the long-defunct 1963 commission; the correct comparison is to the current system where the Legislature, an accountable body, controls redistricting. Removing this 'foundation' power of government from the Legislature and vesting it in a new, independent commission of 13 randomly selected, unaccountable citizens is a fundamental change. This change is so profound that the proposal must amend the vesting clauses of all three branches of government, effectively creating a fourth branch and fundamentally altering the separation of powers, which warrants the deliberative process of a constitutional convention.
Dissenting - Wilder, J.
Yes. The proposal is a general revision, and it also fails on separate procedural grounds. This opinion concurs with Chief Justice Markman's dissent but writes separately to provide an alternative basis for rejecting the proposal: its failure to comply with the constitutional republication requirement. The VNP proposal requires applicants to the commission to attest under oath to their political party affiliation. This abrogates the Oath Clause of Const 1963, art 11, § 1, which states that 'No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.' Because the proposal abrogates an existing constitutional provision, VNP was required to republish the text of that provision on its petitions. Its failure to do so is fatal to the proposal, and it should be rejected on this basis alone.
Analysis:
This decision establishes the 'new-constitution test' for distinguishing between a permissible voter-initiated 'amendment' and an impermissible 'general revision' in Michigan, replacing the vaguer qualitative/quantitative analysis used by lower courts. The ruling significantly empowers citizen-led initiatives to enact structural government reforms, such as creating independent commissions, by clarifying that such changes are not automatically 'revisions.' By anchoring its analysis in the 1963 Constitution's original framework rather than the subsequent judicial and legislative stopgaps, the court signals that initiatives aimed at restoring or reforming original constitutional designs will be viewed as amendments, potentially encouraging future ballot proposals on a range of governance issues.
