-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

COALITION PROTECTING AUTO NO-FAULT,

BRAIN INJURY ASSOCIATION OF MICHIGAN, ILENE IKENS, RICHARD IKENS, KENNETH WISSER, SUSAN WISSER, GREGORY WOLFE, and KAREN WOLFE,

Plaintiffs-Appellees/CrossAppellants, FOR PUBLICATION August 25, 2016

v No. 314310 Ingham Circuit Court

MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, LC No. 12-000068-CZ

Defendant-Appellant/CrossAppellee.

ON REMAND

Before: O WENS , P.J., and B ORRELLO and G LEICHER , JJ.

G LEICHER

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

Two provisions before us, one s tatutory and one constitutional , serve a common purpose: to promote transparency in government. The core objective of t he Freedom of Information Act (FOIA), MCL 15.231 et seq. , “is to provide the people of this state with full and complet e 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 amend ed, Const 1963, art 4, § 25, prevents the Legislature from cloaking alterations of previousl y-enacted laws in garb “calculated
to mislead the carele ss as to its effect[.]” People v Mahaney , 13 Mich 481, 497 (1865).

By inserting a FOIA exemption into a statute addressing certai n operational mechanics of insurance “associations,” the Leg islature 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 Informati on Act is “a broa dly written st atute designed to open the closed files of government.” Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff , 463 Mich 353,-2- 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 f ull disclosure. MCL 15.233(1). A “[p]ublic record” is “a writing prepared, owned, used, in the p ossession of, or retained by a public body in the performance of an official function, from th e time it is created.” MCL 15.232(e). The FOIA separates pub lic records into two categori es: “[t]hose that are exempt from disclosure under section 13,” a nd “[a]ll public records that ar e 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 Clai ms Association (MCCA) is a “public body.” It nece ssarily follows that unless exempted und er § 13, the MCCA’s public records are subject to disc losure 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 tr ade secrets voluntarily provided to state agencies, MCL 15.243(1)(f), to “medical . . . facts” c oncerning an individual whose identity would be revealed by disclosure, MCL 15.243(1)( l ), to “[i]nformation that would reveal
the exact location of archaeo logical 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 th e “exact location of archaeolo gical sites” need not be revealed, “[t]he department of history, arts, and libraries may promulgat e rules . . . to provide for the
disclosure of the lo cation of the” sites t o further “preservati on or scientific e xamination[.]”

The general thrust of the FOIA is strongly pro-disclosure. It s exemptions are judiciously drawn and are to be “narrowly construed, and the party assertin g 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 MC CA from public disclosure.

1 Section 13 is MCL 15.243.

2 Trade secrets or commercial or financial information voluntari ly provided to an agency for use in developing governmental policy [are exempt fr om disclosure]
if:

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

( ii ) The promise of confidentiality is authorized by the chief adm inistrative officer of the public body or by an elected o fficial at the time the pr omise is made.

( iii ) A description of the informa tion is recorded by the public bo dy within a reasonable time after it has been submitted, maintained in a ce ntral place within the public body, and made available to a person upon request. T his subdivision does not apply to information submitted as required by law or a s a condition of receiving a governmental contract , license, or other benefit. [MCL 15.243(1)(f).]-3- Nor does the FOIA extend blanket immunity from disclosure of pu blic records to any specific “public body.” Rather, the FOIA permits the Legislature to exe mpt “[r]ecords or information specifically described ” from disclosure. MCL 15.243(1)(d) (emphasis added).

The Legislature adopted the automobile no-fault act, MCL 500.3 101 et seq ., in 1972. In 1978, the Legislature amended th e no-fault act by establishing the MCAA “as the means for reimbursing each member insurer for all ‘ultimate loss sustaine d under personal protection insurance coverages in excess of $250,000 in each loss occurren ce.’ ” 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 nofault act. The duties and obligations of the MCAA are also fou nd 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 intende d “to regulate the incorporation or formation of domestic insurance and surety companies and associ ations” 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 N o. 442 of the Public Acts of 1976, being sect ion 15.243 of the Michigan Compi led 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 ne w FOIA exemption into a portion of the Insurance Code generally addressing a variety of organizatio nal issues relevant to “asso ciations” 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-e nacted 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 t his obvious amendment of the
FOIA in a statute unconnected t o the FOIA, failed to add the ex emption to the FOIA, and neither reenacted nor published at lengt h § 13 of the FOIA which it (1) referenced by its title only, and (2) “revised, altered [and] ame nded” by adding a brand new cate gory of information excused
from disclosure. Prevention of thi s legislative legerdemain is precisely the object of art 4, § 25.

3 “A preamble is not to be considered authority for construing a n 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).-4- “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 Constituti on, 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 vir tually identical to article 4, § 25 of the 1850 Constitution. “Except for some punctuation an d some rearrangement of words in the latter half of the provision, this language has continued through to this date (al so 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 constitut ional 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 remed y was one perpetually recurring,
and often serious.”

Alterations made in the statutes by mere reference, and amendme nts by the striking out or insertion of wor ds, without reproducing the sta tute 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 peop le as to the l aw they were to obey, and were perhaps sometimes presented in this obscure form from a doubt on the part of those desiring or propos ing them of their being accepte d if the exact change to be made were clearly understood. Harmony and consist ency in the statute law, and such a clear and consecutive expression of the legislative will on any given subject as was desira ble, it had been found impractic able to secure without some provision of this n ature; and as the section requi res nothing in legislation that is not perfec tly simple and easily followed, a nd 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 disregard ed by the legislature, the default has pr oceeded from inadvertence merely . [ Id . at 516-517.]

The constitutional provision, Ju stice Cooley continued, “requir es each act of legislation to be complete in itself, and forbids the enactment of fragments whic h are incapable of having effect or of being understood until fitted in to other acts after by c onstruction or otherwise places have
been made for them. No such l egislation 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 Leg islature contravened the Constitution by amending § 2103(4)(a)( iii ) of the Insurance Code, MCL 500.2103(4)(a)( iii ), without reenacting or republishi ng the code. The pertinent sec tion 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 Statutor y Construction § 22:16 (7th ed).-5- assessed against a driver who violated the speed limit by 10 mi les per hour or less. Id

. “Notwithstanding that then-exis ting provision, the Legislature amended the vehicle code in 1987, and added a provision disallowing the imposition of any insuran ce eligibility points for ten mile per hour (or less) speed limit violations in one specific insta nce[.]” Id . Thus, the practical effect of the amended vehicle code provision was an amendment of the I nsurance 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 stre ssed:

The conflict between the two is not one resulting from mere ina dvertence. To the contrary, vehicle code § 628( 11)[, MCL 257.628(11),] quite clea rly resulted from a legislative knowledge of the Insurance Code’s 2-point rule an d 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] b y [an] indirect amendment[ ]” that can only be understood or given effect by “fit t[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 w ith 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 FOI A “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 statut e does indeed “ ‘make some changes’ to the [the] FOIA”; the Legislature admitted as much b y 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 th e information held by a “public body,” rather than “specifically describ[ing]” the records or i nformation exempted. See 15.243(1)(d).

The majority’s next statement—that § 134(4) “is not a ‘pieceme al amendment to an existing comprehensive statutory scheme’ ”—is simply untrue. I ndisputably, the FOIA is a “comprehensive statutory scheme.” By exempting the MCCA from t he 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 t he Insurance Code. In my view, this form of statutory amendmen t 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-6- 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 re ference to its title only, as was done here. Rather, “[t]he section or sections of the act alter ed 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 unt o 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 ne vertheless referring to the FOIA—the Legislature overlooked its constitutional obligation t o undertake a more laborintensive amendatory step: reenac ting and republishing the exem ption section of the FOIA. A citizen (or legislator) reading the FOIA would have no reason t o know that a covert FOIA exemption hides within the Insurance Code. This is the amendat ory obfuscation that art 4, § 25 forbids. As Justice Cooley put it:

The mischief designed to be remedied was the enactment of amend atory statutes in terms so blind that legislators themselves were sometimes de ceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the ch anges made in the laws. An amendatory act which purported only to insert cer tain words, or to substitute one phrase for another in an act or section which wa s only referred to but not republished, was well calculated to mislead the careles s 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 con stitution wisely prohibited such legislation. [ Mahaney , 13 Mich at 497.]

I would hold that because MCL 500.134(4) offends our Constitut ion’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.