Nienstedt v. Sec'y of State

980 N.W.2d 721 (Mem)

Frederick NIENSTEDT, Plaintiff,

v.SECRETARY OF STATE, Defendant.

SC: 164807

Supreme Court of Michigan.

November 4, 2022

Order

On order of the Court, the complaint for superintending control is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief.

Viviano, J. (concurring).

Plaintiff filed this case to obtain an order requiring that the full language of all proposed constitutional amendments be sent to absentee voters along with their absentee ballots. I agree with this Court's denial order because there is currently no legal requirement that voters receive a copy of the full text of proposed constitutional amendments. I write, however, because I believe there should be.

The language of the law matters. Any rule that obscures the law's text from the people to whom it applies would be fundamentally unjust. See Scalia, The Rule of Law as a Law of Rules , 56 U Chi L Rev 1175, 1179 (1989) ("It is said that one of emperor Nero's nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to transgress. As laws have become more numerous, and as people have become increasingly ready to punish their adversaries in the courts, we can less and less afford protracted uncertainty regarding what the law may mean."). The same is true even when the text is available but incomprehensible to an ordinary reader or nearly so. After the Norman conquest of England, "law French" became the language used in judicial proceedings. Mellinkoff, The Language of the Law (Boston: Little, Brown and Company, 1963), pp. 95-96. But commoners could not speak this language, and law became inaccessible to average subjects of the realm. Id. at 101. When Parliament remedied this situation in 1362 in the Statute of Pleading, making English the language of the law, it expressed the purpose that "every Man of the said Realm may the better govern himself without offending of the Law, and the better keep, save, and defend his Heritage and Possessions ...." Statute of Pleading, 36 Edw. III c 15 (1362); but see The Language of the Law , pp. 112-113 (noting the persistent use of Law French after the Statute of Pleading).

The importance of clear and comprehensible language in our laws has not diminished over the centuries. If anything, the rapid proliferation of statutory and regulatory laws makes the comprehensibility and accessibility of legal texts more critical than ever. A significant portion of the modern appellate judge's job is to parse the language of constitutions, statutes, regulations, and other rules and sources of law. As in most modes of communication, it is generally a safe assumption that the language in such texts was chosen deliberately. Cf. Pohutski v City of Allen Park , 465 Mich. 675, 683-684, 641 N.W.2d 219 (2002) (" ‘The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another.’ ") (citation omitted). Indeed, in the constitutional sphere, our fundamental interpretive principle is that the text means what it was commonly understood by the ratifiers to mean—a principle that would hardly be possible if the ratifiers had no opportunity to read and understand the text they were enacting into law. Citizens Protecting Michigan's Constitution v Secretary of State , 503 Mich. 42, 61, 921 N.W.2d 247 (2018).

Yet when it comes time for Michiganders to vote on constitutional amendments, our laws provide voters with no real opportunity to read and understand the proposed amendments. In Michigan, the full text of constitutional amendments is not sent to voters and does not appear on the ballot itself.¹ In fact, the only individuals presented with the "full text" of the amendment are those who are asked, at a much earlier stage of the process, to sign the petition to place the amendment on the ballot. Const 1963, art. 12, § 2 ; MCL 168.482(3).² But when this Court recently considered the petition requirement, a majority concluded that the pervasive lack of spacing between words in the amendment at issue was no obstacle to its placement on the ballot. Reproductive Freedom for All v Bd of State Canvassers , ––– Mich ––––, 978 N.W.2d 854 (2022). As my dissent in that case explained, spacing between words is a critical and longstanding practice that "facilitates reading and comprehension ...."

Id. at ––––, 978 N.W.2d at 869 ( VIVIANO , J., dissenting). When reading and comprehension are thus impeded, the lone official chance of even this smaller subset of voters to review the full text of the law is...