                          STATE OF MICHIGAN

                            COURT OF APPEALS



COALITION PROTECTING AUTO NO-FAULT,                                FOR PUBLICATION
BRAIN INJURY ASSOCIATION OF                                        August 25, 2016
MICHIGAN, ILENE IKENS, RICHARD IKENS,
KENNETH WISSER, SUSAN WISSER,
GREGORY WOLFE, and KAREN WOLFE,

               Plaintiffs-Appellees/Cross-
               Appellants,

v                                                                  No. 314310
                                                                   Ingham Circuit Court
MICHIGAN CATASTROPHIC CLAIMS                                       LC No. 12-000068-CZ
ASSOCIATION,

               Defendant-Appellant/Cross-
               Appellee.


                                          ON REMAND

Before: OWENS, P.J., and BORRELLO and GLEICHER, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        Two provisions before us, one statutory and one constitutional, serve a common purpose:
to promote transparency in government. The core objective of the Freedom of Information Act
(FOIA), MCL 15.231 et seq., “is to provide the people of this state with full and complete
information regarding the government’s affairs[.]” Practical Political Consulting, Inc v
Secretary of State, 287 Mich App 434, 462; 789 NW2d 178 (2010). Our Constitution’s
provision prescribing the manner in which statutes may be amended, Const 1963, art 4, § 25,
prevents the Legislature from cloaking alterations of previously-enacted laws in garb “calculated
to mislead the careless as to its effect[.]” People v Mahaney, 13 Mich 481, 497 (1865).

       By inserting a FOIA exemption into a statute addressing certain operational mechanics of
insurance “associations,” the Legislature obscured from public view its significant diminution of
the FOIA’s reach. Because this piecemeal amendment contravenes our Constitution, I
respectfully dissent.

       Michigan’s Freedom of Information Act is “a broadly written statute designed to open the
closed files of government.” Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353,

                                                -1-
359; 616 NW2d 677 (2000). Public bodies must disclose “public record[s]” sought under the act
unless a specific statutory exemption shields the record from full disclosure. MCL 15.233(1). A
“[p]ublic record” is “a writing prepared, owned, used, in the possession of, or retained by a
public body in the performance of an official function, from the time it is created.” MCL
15.232(e). The FOIA separates public records into two categories: “[t]hose that are exempt from
disclosure under section 13,” and “[a]ll public records that are not exempt from disclosure under
section 13 and which are subject to disclosure under this act.” MCL 15.232(e)(i) and (ii).1 The
majority correctly recognizes that Michigan’s Catastrophic Claims Association (MCCA) is a
“public body.” It necessarily follows that unless exempted under § 13, the MCCA’s public
records are subject to disclosure under the FOIA.

        Section 13 of the FOIA provides a comprehensive list of public records exempt from
disclosure. The exemptions range far and wide, from certain trade secrets voluntarily provided
to state agencies, MCL 15.243(1)(f), to “medical . . . facts” concerning an individual whose
identity would be revealed by disclosure, MCL 15.243(1)(l), to “[i]nformation that would reveal
the exact location of archaeological sites.” MCL 15.243(1)(o). Notwithstanding the breadth of
the exemptions’ subject matters, the exceptions themselves are tightly circumscribed. For
example, to warrant exemption, a trade secret must fulfil three separate and distinct criteria.2
Although information revealing the “exact location of archaeological sites” need not be revealed,
“[t]he department of history, arts, and libraries may promulgate rules . . . to provide for the
disclosure of the location of the” sites to further “preservation or scientific examination[.]”

       The general thrust of the FOIA is strongly pro-disclosure. Its exemptions are judiciously
drawn and are to be “narrowly construed, and the party asserting the exemption bears the burden
of proving that the exemption's applicability is consonant with the purpose of the FOIA.”
Detroit Free Press, Inc v Dep’t of Consumer & Indus Servs, 246 Mich App 311, 315; 631 NW2d
769 (2001). The FOIA does not exempt records created by the MCCA from public disclosure.


1
    Section 13 is MCL 15.243.
         2
           Trade secrets or commercial or financial information voluntarily provided to an
         agency for use in developing governmental policy [are exempt from disclosure]
         if:

         (i) The information is submitted upon a promise of confidentiality by the public
         body.

         (ii) The promise of confidentiality is authorized by the chief administrative officer
         of the public body or by an elected official at the time the promise is made.

         (iii) A description of the information is recorded by the public body within a
         reasonable time after it has been submitted, maintained in a central place within
         the public body, and made available to a person upon request. This subdivision
         does not apply to information submitted as required by law or as a condition of
         receiving a governmental contract, license, or other benefit. [MCL 15.243(1)(f).]


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Nor does the FOIA extend blanket immunity from disclosure of public records to any specific
“public body.” Rather, the FOIA permits the Legislature to exempt “[r]ecords or information
specifically described” from disclosure. MCL 15.243(1)(d) (emphasis added).

        The Legislature adopted the automobile no-fault act, MCL 500.3101 et seq., in 1972. In
1978, the Legislature amended the no-fault act by establishing the MCAA “as the means for
reimbursing each member insurer for all ‘ultimate loss sustained under personal protection
insurance coverages in excess of $250,000 in each loss occurrence.’ ” League Gen Ins Co v
Mich Catastrophic Claims Ass’n, 435 Mich 338, 341; 458 NW2d 632 (1990), citing MCL
500.3104(2). Aptly, the Legislature located this amendment of the no-fault act within the no-
fault act. The duties and obligations of the MCAA are also found within the no-fault act. MCL
500.3104.

        In 1988, the Legislature amended section 134 of the Insurance Code, MCL 500.134, by
enacting PA 349. The act’s preamble states that it was intended “to regulate the incorporation or
formation of domestic insurance and surety companies and associations” and to “provide their
rights, powers, and immunities and to prescribe the conditions on which companies and
associations organized, existing, or authorized under this act may exercise their powers . . . .”3
Among the added provisions was § 134(4), which provides:

              A record of an association or facility shall be exempted from disclosure
       pursuant to section 13 of the freedom of information act, Act No. 442 of the
       Public Acts of 1976, being section 15.243 of the Michigan Compiled Laws.
       [MCL 500.134(4).]

Instead of amending the FOIA’s listed exemptions to include “a record of” the MCCA, the
Legislature inserted a brand new FOIA exemption into a portion of the Insurance Code generally
addressing a variety of organizational issues relevant to “associations” governed by the code.

       Const 1963, art 4, § 25 provides simply:

       No law shall be revised, altered or amended by reference to its title only. The
       section or sections of the act altered or amended shall be re-enacted and published
       at length.

       Specifically referencing the FOIA, MCL 500.134(4) purports to exempt “[a] record of an
association” from public disclosure. The Legislature located this obvious amendment of the
FOIA in a statute unconnected to the FOIA, failed to add the exemption to the FOIA, and neither
reenacted nor published at length § 13 of the FOIA which it (1) referenced by its title only, and
(2) “revised, altered [and] amended” by adding a brand new category of information excused
from disclosure. Prevention of this legislative legerdemain is precisely the object of art 4, § 25.


3
  “A preamble is not to be considered authority for construing an act, but it is useful for
interpreting statutory purpose and scope.” King v Ford Motor Credit Co, 257 Mich App 303,
311-312; 668 NW2d 357 (2003).


                                                -3-
        “Our primary goal in construing a constitutional provision is to give effect to the intent of
the people of the state of Michigan who ratified the Constitution, by applying the rule of
‘common understanding.’ ” UAW v Green, 498 Mich 282, 286-287; 870 NW2d 867 (2015).
“We identify the common understanding of constitutional text by applying the plain meaning of
the text at the time of ratification.” Id. at 287. The task is made somewhat easier here, as art 4,
§ 25 of the 1963 Constitution is virtually identical to article 4, § 25 of the 1850 Constitution.
“Except for some punctuation and some rearrangement of words in the latter half of the
provision, this language has continued through to this date (also see 1908 Const art 5, §§ 21,
22).” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 469-470; 208
NW2d 469 (1973). The seminal opinion construing this constitutional provision, also found in
many other state constitutions,4 was authored by Justice Thomas M. Cooley.

       In Mok v Detroit Bldg & Savings Ass’n No 4, 30 Mich 511, 516 (1875), Justice Cooley
explained that “the evil” which art 4, § 25 “was meant to remedy was one perpetually recurring,
and often serious.”

         Alterations made in the statutes by mere reference, and amendments by the
         striking out or insertion of words, without reproducing the statute in its amended
         form, were well calculated to deceive and mislead, not only the legislature as to
         the effect of the law proposed, but also the people as to the law they were to obey,
         and were perhaps sometimes presented in this obscure form from a doubt on the
         part of those desiring or proposing them of their being accepted if the exact
         change to be made were clearly understood. Harmony and consistency in the
         statute law, and such a clear and consecutive expression of the legislative will on
         any given subject as was desirable, it had been found impracticable to secure
         without some provision of this nature; and as the section requires nothing in
         legislation that is not perfectly simple and easily followed, and nothing that a due
         regard to clearness, certainty and simplicity in the law would not favor, it is
         probable that if the requirement has at any time been disregarded by the
         legislature, the default has proceeded from inadvertence merely. [Id. at 516-517.]

The constitutional provision, Justice Cooley continued, “requires each act of legislation to be
complete in itself, and forbids the enactment of fragments which are incapable of having effect
or of being understood until fitted in to other acts after by construction or otherwise places have
been made for them. No such legislation can be sustained.” Id. at 529.

        Fast forwarding 130 years, this Court applied art 4, § 25 in a case bearing remarkable
similarity both to Mok and the matter now before us. In Nalbandian v Progressive Mich Ins Co,
267 Mich App 7; 703 NW2d 474 (2005), we determined that the Legislature contravened the
Constitution by amending § 2103(4)(a)(iii) of the Insurance Code, MCL 500.2103(4)(a)(iii),
without reenacting or republishing the code. The pertinent section of the Insurance Code
permitted insurance companies to calculate premium rates based on “insurance eligibility points”
assessed for an insured’s speed limit violations. Id. at 9. Two eligibility points could be


4
    See 1A Sutherland Statutory Construction § 22:16 (7th ed).


                                                 -4-
assessed against a driver who violated the speed limit by 10 miles per hour or less. Id.
“Notwithstanding that then-existing provision, the Legislature amended the vehicle code in 1987,
and added a provision disallowing the imposition of any insurance eligibility points for ten mile
per hour (or less) speed limit violations in one specific instance[.]” Id. Thus, the practical effect
of the amended vehicle code provision was an amendment of the Insurance Code. Drawing
primarily on Justice Cooley’s reasoning in Mok, this Court rejected the argument that the
Legislature had accidentally amended the vehicle code. We stressed:

       The conflict between the two is not one resulting from mere inadvertence. To the
       contrary, vehicle code § 628(11)[, MCL 257.628(11),] quite clearly resulted from
       a legislative knowledge of the Insurance Code’s 2-point rule and an intent to
       abrogate that rule with respect to 55 mile per hour speed zone violations. The 55
       mph speed zone exception constitutes a “fragment[ary]” attempt to
       “accommodate [the 2 point rule] by [an] indirect amendment[ ]” that can only be
       understood or given effect by “fitt[ing]” the two acts together. . . . “ ‘No such
       legislation can be sustained.’ ” [Alan v Wayne Co, 388 Mich 210, 272; 200
       NW2d 628 (1972)], quoting Mok, [30 Mich] at 529. “[W]hen the Legislature
       intends to amend a previous act, it must do so in conformance with the plain and
       unequivocal requirements of . . . Const 1963, art 4, § 25.” Alan, [388 Mich] at
       275. [Id. at 14.]

       The majority attempts to distinguish Nalbandian and Mok by asserting that the
amendment to the Insurance Code exempting the MCCA from the FOIA “did not undertake to
‘dispense with some things required’ by [the] FOIA, it did not ‘make some changes’ to [the]
FOIA, nor did it incorporate [the] FOIA and ‘accommodate it by indirect amendments.’ ”
Though the majority has accurately quoted Mok, it misunderstands the effect of MCL
500.134(4). Contrary to the majority’s conclusions, the statute does indeed “ ‘make some
changes’ to the [the] FOIA”; the Legislature admitted as much by expressly referencing the
exemption section of the FOIA when it amended § 134(4). Indeed, § 134(4) works a sea change
in the FOIA as it privileges from disclosure the entirety of the information held by a “public
body,” rather than “specifically describ[ing]” the records or information exempted. See
15.243(1)(d).

        The majority’s next statement—that § 134(4) “is not a ‘piecemeal amendment to an
existing comprehensive statutory scheme’ ”—is simply untrue. Indisputably, the FOIA is a
“comprehensive statutory scheme.” By exempting the MCCA from the FOIA, the Legislature
modified the FOIA in a fragmentary fashion. No one reading the FOIA’s exemptions would
understand that yet another exemption exists in the depths of the Insurance Code. In my view,
this form of statutory amendment fully qualifies as “piecemeal.”5




5
 The Michigan Supreme Court declared in Alan, 388 Mich at 281: “Mok stands for the rule that
you cannot amend statute C even by putting in statute B specific words to amend statute C,
unless you republish statute C as well as statute B under Const 1963, art 4, § 25.” (Emphasis in

                                                -5-
        Nor am I persuaded that because § 13(1)(d) of the FOIA permits the Legislature to create
additional exemptions, § 134(4) passes constitutional muster. Article 4, § 25 plainly provides
that the Legislature may not revise, alter or amend a law by reference to its title only, as was
done here. Rather, “[t]he section or sections of the act altered or amended” must be “re-enacted
and published at length.” The Legislature failed to take this constitutionally necessary step. The
majority has not explained how the Legislature may arrogate unto itself a Constitutional bypass
by inserting some “magic words” into a statute.

        The Legislature certainly may amend or revise the FOIA. When it created a new FOIA
exemption in a statutory section unrelated to the FOIA—while nevertheless referring to the
FOIA—the Legislature overlooked its constitutional obligation to undertake a more labor-
intensive amendatory step: reenacting and republishing the exemption section of the FOIA. A
citizen (or legislator) reading the FOIA would have no reason to know that a covert FOIA
exemption hides within the Insurance Code. This is the amendatory obfuscation that art 4, § 25
forbids. As Justice Cooley put it:

       The mischief designed to be remedied was the enactment of amendatory statutes
       in terms so blind that legislators themselves were sometimes deceived in regard to
       their effect, and the public, from the difficulty in making the necessary
       examination and comparison, failed to become apprised of the changes made in
       the laws. An amendatory act which purported only to insert certain words, or to
       substitute one phrase for another in an act or section which was only referred to
       but not republished, was well calculated to mislead the careless as to its effect,
       and was, perhaps, sometimes drawn in that form for that express purpose.
       Endless confusion was thus introduced into the law, and the constitution wisely
       prohibited such legislation. [Mahaney, 13 Mich at 497.]

        I would hold that because MCL 500.134(4) offends our Constitution’s reenact-publish
clause, article 4, § 25, it cannot be enforced.



                                                            /s/ Elizabeth L. Gleicher




original.) If one substitutes the FOIA for “statute C” and MCL 500.134(4) for “statute B,” the
flaw in the majority’s reasoning becomes obvious.


                                               -6-
