Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  August 24, 2012                                                                   Robert P. Young, Jr.,
                                                                                              Chief Justice

  145698 & (45)(47)                                                                  Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  PROTECT MI CONSTITUTION,                                                               Brian K. Zahra,
           Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 145698
                                                          COA: 311504
  SECRETARY OF STATE,
           Defendant,
  and

  CITIZENS FOR MORE MICHIGAN JOBS,
            Intervening Defendant-
            Appellant.

  ____________________________________/

         On order of the Court, the motion for immediate consideration and motion to file
  brief amicus curiae are GRANTED. The application for leave to appeal the August 14,
  2012 judgment and order of the Court of Appeals is considered and, pursuant to MCR
  7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court
  of Appeals and VACATE that court’s order of mandamus. The ballot proposal seeks
  voter approval of a constitutional amendment, and accordingly it is governed by Const
  1963, art 12, § 2. There is no showing that there has been a failure to comply with this
  provision. The Court of Appeals erroneously applied Const 1963, art 4, § 25, which
  applies to amendments of laws. The plaintiff’s complaint for mandamus is DISMISSED.
  The Secretary of State, the Board of State Canvassers, and the Director of Elections are
  directed to proceed.

         MARKMAN, J. (concurring).

         It is seemingly the view of all the other justices of this Court that in amending the
  Constitution under Const 1963, art 12, § 2, compliance is neither required with the
  procedures of Const 1963, art 2, § 9, providing that no voter-initiated law “shall be
  amended or repealed, except by a vote of the electors” and that electors as a result must
  be apprised on the petition that a voter-initiated law has been placed in jeopardy, nor with
  Const 1963, art 4, § 25, providing that no law shall be “revised, altered or amended by
  reference to its title only” and that the sections revised, altered or amended “shall be
  reenacted and published at length.” I do not consider either of these propositions to be
  indefensible, or even unreasonable, but I do respectfully disagree, for I view the
  Constitution to be sufficiently clear to the contrary.
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        In the instant case, the “initiated law” being “amended” or “altered” is the Gaming
Control and Revenue Act (Gaming Act), MCL 432.201 et seq., adopted by the voters in
1996. As the Court of Appeals comprehensively points out, there are myriad provisions
of that Act that would be rendered null and void by the contradictory language of
intervening defendant’s ballot proposal, including those pertaining to gaming tax rates,
the allocation of gaming tax revenues, the authority of the Gaming Control Board,
casino-municipality relationships, and investor disclosure requirements. Thus, I agree
with the Court of Appeals that the ballot proposal “thoroughly revises the Act.” Despite
this, there is nothing in defendant’s petition that identifies it to voters as a proposal to
amend the Gaming Act, for it is silent in that regard. The petition fails even to alert
voters to the fact that they are being asked to amend a law that they themselves
previously enacted through the initiative process, a requirement, in my view, that is
provided for by both Const 1963, art 2, § 9 and Const 1963, art 4, § 25, the former
requiring that a conflict with an existing voter-initiated law be identified and the latter
requiring republication of the conflicted law.

         In short, I agree with the Court of Appeals – and not just with the judges in the
majority, but also with the dissenting judge, who recognizes that defendant’s ballot
proposal “does not, in fact, conform to the requirements of our Constitution for
presentation to the voters” – that the pending ballot proposal is flawed. I am not
persuaded by defendant’s argument that because it “makes no changes in the Gaming Act
itself” but only to the Constitution, its ballot proposal need not comply with the
requirements of Const 1963, art 2, § 9 or Const 1963, art 4, § 25, despite the fact that, if
adopted, the proposal would largely nullify the Gaming Act. It is too clever an argument
that it is only the Constitution that is being “amended” or “altered,” and not also the Act.
Rather, the effect, indeed the intended and not merely an incidental effect, of defendant’s
proposal is to “amend” and to “alter” the Gaming Act, and the harm feared by Justice
Cooley, People v Mahaney, 13 Mich 481 (1865) – that “the public, from the difficulty in
making the necessary examination and comparison, fail[] to become apprised of the
changes made in the law” – is exactly the harm that is posed in this particular case.

       While I am appreciative that there is a strong democratic imperative grounded
within our Constitution requiring that this Court respect and facilitate the initiative and
referendum processes, there are also countervailing democratic imperatives that counsel
caution and restraint. First, although Const 1963, art 12, § 2 provides that “[a]mendments
may be proposed to [the] constitution by petition of the registered electors of this state,”
                                                                                                                3

this same provision provides that “such petition shall be in the form, and shall be signed
and circulated in such manner, as prescribed by law.” Thus, just as the people have
enacted the former authority, so too have they enacted the latter constraint. Second,
although Const 1963, art 2, § 9 sets forth the “power to propose laws . . . called the
initiative,” this same provision provides that, after adoption, these initiatives are accorded
special protections against subsequent modification. Thus, just as the people are entitled
to pursue initiatives such as the present one, the same people who adopted the Gaming
Act initiative in 1996 are entitled to have their initiative upheld absent compliance with
constitutional procedures. Third, although it is relevant only to referendums, the same
constitutional provision that authorizes the referendum process, Const 1963, art 2, § 9,
also specifies that such process “must be invoked in the manner prescribed by law,” no
doubt because it is an extraordinary process that replaces the ordinary democratic
procedures of government, in which a majority of the people’s representatives in the
Legislature enact laws, with a procedure in which these laws can be enjoined by petitions
signed by five percent of the people. Thus, again there are democratic imperatives in
constitutional tension.

        If there is virtue in today’s decision, it is in providing clarity as to what the
constitution requires of voter-initiated constitutional amendments. The people are
entitled to know how this process is properly invoked. We have seen evidence over the
past several weeks, and more such evidence appears imminent, of the confusion that
exists in this respect on the part of the people, the Board of State Canvassers, the
Secretary of State, and this Court itself. It is necessary for the integrity of the
constitutional process, and for the integrity of this Court, that the rules be clarified.
Although I read the Constitution differently from my colleagues, I welcome the clarity
being introduced by today’s decision. The process of amending the Constitution by
initiative has been made simpler and more straightforward. Whether this is fully in
accord with articles 2 and 4 of the Constitution is something about which reasonable
minds can differ. I acquiesce and concur in the majority’s decision and will adhere to it
in all future cases of the same kind. It is a good thing that the law be settled in this
matter.




                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          August 24, 2012                     _________________________________________
       h0824                                                                  Clerk
