LANSING – Processing an initiative petition to amend the Constitution is essentially a ministerial duty that does not include having the state review a proposed amendment to see if it is constitutional, the state said in its reply to the lawsuit attempting to stop placement of the Reform Michigan Government Now! proposal on the November ballot.

But in a separate amicus brief, Attorney General Mike Cox said he did not think the proposal met constitutional form defining an amendment.

The separate amicus brief puts the Department of Attorney General in the position of arguing against the lawsuit while the attorney general personally is allying with the plaintiffs in the case (Citizens Protecting Michigan’s Constitution v. Secretary of State, COA docket No. 286734)

The RMGN committee also was not silent on Friday, filing its own motion to be allowed as an intervenor in the case, and arguing both that the state cannot judge the petition and that the plaintiffs at one time were okay with the idea of constitutional proposals that cover several topics within the constitution. It also asked that the seven judges in the Court of Appeals that could be removed from office if the proposal passes recuse themselves from hearing the case.

The main response is to the lawsuit filed a week ago by Citizens Protecting Michigan’s Constitution. The lawsuit charges the proposal cannot be put on the ballot because it violates the constitutional definition of an amendment.

But the response said the courts have consistently held that the Department of State and the Board of State Canvassers do not have a role in judging the constitutionality of a proposal.

The role of the canvassers and the secretary of state is to simply to determine if the petition acquired sufficient signatures and that it met requirements as to form. The courts ruled that way as recently as 2004 when it held the canvassers could not block placing a proposed constitutional amendment outlawing same-sex marriage from being on the ballot and again in 2006 over a proposal to bar affirmative action, the state said.

That is the position as well of the RMGN committee, which filed a motion to intervene in the case. Andrew Nickelhoff, RMGN’s attorney, told reporters that there is no precedent for courts to rule that a provision is unconstitutional before the voters have acted on it.

The canvassers, Nickelhoff said, “count the signatures, look at the petition for form, size of the font, and once they do that their job is done.”

If individuals truly believe a proposal is unconstitutional by federal standards then they can file that action if the voters approve it in November, he said.

But Cox, in amicus brief, agrees with the argument of the plaintiffs that the proposal amounts to a complete revision of the Constitution and not an amendment as laid out in the Constitution.

“Therefore, the ballot proposal does not properly fit within the amendment process,” the brief argues.

Cox does not directly deal with the issue of whether the canvassers and the secretary of state should process the petition, focusing instead on the issue of whether the court has the power to issue mandamus to block the proposal.

The state’s response does not deal with the issue of whether amendments can encompass changes to more than one section and article of the Constitution, but the brief of the RMGN does.

The Constitution puts no limit on the scope and breadth of constitutional amendments, the RMGN argued. The brief argues that at least eight proposed amendments on the ballot since the 1963 Constitution was adopted would have affected multiple sections of the Constitution.

But Cox argued that what makes the RMGN different is that the 28 proposed amendments within the proposal are not related. In other words, they are not all related to tax limitation or school finance, but encompass a broad array of subjects.

“In fact, if allowed to be placed on the ballot, the RMGN proposal would mark the first time since ratification that an amendment affected multiple articles of the Constitution for unrelated purposes in this fashion,” Cox said.

It is not unprecedented for the attorney general to be on opposite sides in an argument. Former Attorney General Frank Kelley argued different sides in several cases.

And while the RMGN asked that the seven appeals judges who could be directly affected by the proposal recuse themselves, that is less stringent than earlier charges that effectively no judge could hear the case because all judges would have a potential conflict of interest.

This story was provided by Gongwer News Service. To subscribe, click on Gongwer.Com

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