Memorandum

To: Attorney General Dana Nessel

From: Environmental Law & Policy Center
Andrene Dabaghi and Margrethe Kearney
National Wildlife Federation
Andy Buchsbaum, Benjamin Muth, Oday Salim, Mike
Shriberg, Beth Wallace, and Bruce Wallace
Date: 2019 February 1
Subject: Constitutionality of tunnel law in light of Article 4,
§ 24 of the Michigan Constitution

In a letter dated January 1, 2019, Governor Whitmer wrote to you requesting an opinion on the con-
stitutionality of Public Act 359 of 2018 (“Act 359”). In particular, Governor Whitmer posed six
questions. We provide answers to Questions 1, 2, 3, and 6. If you have any questions, please contact
Oday Salim, attorney for National Wildlife Federation: salimo@nwf.org and 586-255-8857.

In its haste to enact the law during a lame duck session that preceded the inau-
guration of a governor and attorney general from another political party, the
legislature committed many fatal flaws when drafting Act 359.
Despite years of discussion, reports, studies, and task forces, 2017-2018 legislature and Governor
Snyder took no legislative action on a proposed tunnel after the November 6, 2018 elections, jam-
ming all the legislation actions—multiple bills and proposed authorities, significant amendments,
and many mistakes – into a brief lame duck session. Informally, the Snyder administration an-
nounced on October 3, 2018, a month before the November elections, that the Mackinac Bridge
Authority (“MBA”) would take ownership of the underground tunnel located in the Great Lakes
bottomlands that would house the replacement to Line 5. It appears the board members of the
MBA were not aware of this until the announcement and there was no legislative action until over a
month later.

On November 7 – prior to any bill being introduced-- MBA board members received a draft of a
proposed agreement between the MBA and Enbridge in anticipation of the MBA being given the
authority to enter into agreements for the underground tunnel. The next day, the MBA hosted a
standing room only public meeting in St. Ignace where most of those who commented for the rec-
ord expressed vigorous opposition to the notion that the MBA should add to its responsibility an
underground tunnel intended to transport oil.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 2 of 17

Then came the lame duck session. The Senate introduced SB 1197 on November 8, 2018. The initial
version of SB 1197 would have altered the MBA’s mandate by adding responsibility for an under-
ground tunnel to transport oil. After significant public opposition and opposition by members of the
MBA board, on December 5 the Senate substantially altered SB 1197 by creating a new political au-
thority, the Mackinac Straits corridor authority, which would be responsible for construction and
operation of the underground tunnel. The new version of SB 1197 purported to amend the Macki-
nac Bridge Authority Act, Act 214 of 1952, MCL 254.311-332, by amending sections 1 and 5 and
adding sections 14, 14a, 14b, 14c, 14d, and 14e.

SB 1197 was enacted into law on December 12, 2018 – only thirty-five days after originating in the
Senate. Act 359 of 2018, MCL 254.311, 315, 324-324e. Immediately Governor Snyder appointed
members of the corridor authority’s board so that the board could sign the contract he had pro-
posed for a different authority -- the Mackinac Bridge Authority -- two months earlier. But in his
haste, he made mistakes. On December 13 and 17, two members initially appointed to the corridor
authority board resigned based on conflicts of interest. Snyder immediately made new appointments
and the Senate quickly rubber-stamped them. On December 19 the brand new corridor authority
board approved the agreement between itself and Enbridge – the agreement that had been drafted
prior to creation of the corridor authority and to which the corridor authority board made no mate-
rial revisions. In rushing to make SB 1197 into law, the legislature failed to amend Act 21 of 1950.
MCL 243.301-302. Act 21 was an organic constitutive law that created the Mackinac Bridge Author-
ity (“MBA”), addressed liability and insurance issues, and provided the initial powers and duties of
the MBA.

The law SB 1197 did amend, Act 214, was enacted in 1952. Since Act 21 had already created the
MBA, Act 214 was exclusively about how the MBA would operate, maintain, and raise revenue for
the Mackinac Bridge.

Yet SB 1197 (now Act 359) makes only minor modifications to the operation and duties of the
Mackinac Bridge Authority, the subject of the original Act 214 it amended. Instead, it establishes a
wholly new governing body called the corridor authority to construct and operate an underground
tunnel that will mainly transport oil. Act 359 also creates a new fund for the tunnel in the treasury,
requires the attorney general to either defend the law or pay for outside attorneys to do so, and re-
quires the newly created corridor authority to enter into a very specific contract for the underground
tunnel.

Question 1
Does Act 359 violate the Title-Object Clause (Const 1963, art 4, § 24) because it
embraces more than one object, the object embraced is not stated in the law’s
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 3 of 17

title, or because SB 1197 was altered or amended on its passage through the
legislature so as to change its original purpose?
Yes, Act 359 violates the Title-Object Clause because the title does not adequately express the object
of the law and because the law embraces more than one object.
Act 359 amended the title of Act 218 by adding three phrases that relate to the utility tunnel. Below
is a comparison of Act 218’s title with that of Act 359. The words added by Act 359 are highlighted
in green.

Act 218’s title Act 359’s title

AN ACT authorizing the Mackinac bridge au-
thority to acquire a bridge connecting the Up-
per and Lower Peninsulas of Michigan, includ-
ing causeways, tunnels, roads and all useful re-
lated equipment and facilities, including park,
parking, recreation, lighting, and terminal facili-
ties; extending the corporate existence of the
authority; authorizing the authority to enjoy
and carry out all powers incident to its corpo-
rate objects; authorizing the appropriation and
use of state funds for the preliminary purposes
of the authority; providing for the payment of
the cost of the bridge and authorizing the au-
thority to issue revenue bonds payable solely
from the revenues of the bridge; granting the
right of condemnation to the authority; grant-
ing the use of state land and property to the au-
thority; making provisions for the payment and
security of bonds and granting certain rights
and remedies to the holders of bonds; authoriz-
ing banks and trust companies to perform cer-
tain acts in connection with the payment and
security of bonds; authorizing the imposition of
tolls and charges; authorizing the authority to
secure the consent of the United States govern-
ment to the construction of the bridge and to
AN ACT authorizing the Mackinac bridge au-
thority to acquire a bridge and a utility tunnel
connecting the Upper and Lower Peninsulas of
Michigan, including causeways, tunnels, roads
and all useful related equipment and facilities,
including park, parking, recreation, lighting, and
terminal facilities; extending the corporate ex-
istence of the authority; authorizing the author-
ity to enjoy and carry out all powers incident to
its corporate objects; authorizing the appropria-
tion and use of state funds for the preliminary
purposes of the authority; providing for the
payment of the cost of the bridge and authoriz-
ing the authority to issue revenue bonds paya-
ble solely from the revenues of the bridge;
granting the right of condemnation to the au-
thority; granting the use of state land and prop-
erty to the authority; making provisions for the
payment and security of bonds and granting
certain rights and remedies to the holders of
bonds; authorizing banks and trust companies
to perform certain acts in connection with the
payment and security of bonds; authorizing the
imposition of tolls and charges; authorizing the
authority to secure the consent of the United
States government to the construction of the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 4 of 17

secure approval of plans, specifications, and lo-
cation of the bridge; authorizing employment
of engineers regardless of whether those engi-
neers have been previously employed to make
preliminary inspections or reports with respect
to the bridge; authorizing the state transporta-
tion department to operate and maintain the
bridge or to contribute to the bridge and enter
into leases and agreements in connection with
the bridge; exempting bonds and the property
of the authority from taxation; prohibiting
competing traffic facilities; authorizing the op-
eration of ferries by the authority; providing for
the construction and use of certain buildings;
and making an appropriation.
bridge and to secure approval of plans, specifi-
cations, and location of the bridge; authorizing
employment of engineers regardless of whether
those engineers have been previously employed
to make preliminary inspections or reports with
respect to the bridge; authorizing the state
transportation department to operate and main-
tain the bridge or to contribute to the bridge
and enter into leases and agreements in connec-
tion with the bridge; exempting bonds and the
property of the authority from taxation; prohib-
iting competing traffic facilities; authorizing the
operation of ferries by the authority; authoriz-
ing the creation of the Mackinac Straits corridor
authority; authorizing the operation of a utility
tunnel by the authority or the Mackinac Straits
corridor authority; providing for the construc-
tion and use of certain buildings; and making an
appropriation.

The Title-Object Clause states in full:

No law shall embrace more than one object, which shall be expressed in its title. No
bill shall be altered or amended on its passage through either house so as to change
its original purpose as determined by its total content and not alone by its title.
Const 1963, art 4, § 24 (“TOC”). “The purpose of the [TOC] is to prevent the Legislature from
passing laws not fully understood, to ensure that both the legislators and the public have proper no-
tice of legislative content, and to prevent deceit and subterfuge.” People v Cynar, 252 Mich App 82,
84 (2002); People v Bosca, 310 Mich App 1, 83 (2015). “The constitutional requirement should be
construed reasonably and permits a bill enacted into law to ‘include all matters germane to its object,
as well as all provisions that directly relate to, carry out, and implement the principal object.’” Gen
Motors Corp v Dep’t of Treasury, 290 Mich App 355, 388 (2010) (citation omitted).
There are three ways in which legislation can violate the TOC: 1) title-body, 2) multiple-object, 3)
change of purpose. People v Kevorkian, 447 Mich 436, 453 (1994).
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 5 of 17

The amended title in Act 359 does not adequately express the content of Act 359. Therefore,
Act 359 violates Const 1963 Art 4, § 24.
A title-body infirmity exists if the title does not adequately express its contents, Township of Ray v
B&BS Gun Club, 225 Mich App 724, 728 (1997), such that the “body exceeds the scope of the ti-
tle.” Coalition Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n, 305 Mich App 301, 314
(2014), vacated in part on other grounds by 498 Mich 896 (2015). “The title of an act must express
the general purpose or object of the act.” Township of Ray, 225 Mich App at 728-29. “However, the
title of an act is not required to serve as an index to all of the provisions of the act. Instead, the test
is whether the title gives the Legislature and the public fair notice of the challenged provision.” Id.
“The fair-notice requirement is violated only ‘where the subjects [of the title and body] are so di-
verse in nature that they have no necessary connection….’” Coalition Protecting Auto No-Fault, 305
Mich App at 315 (quoting Cynar, 252 Mich App at 85). The content of the body must be “germane,
auxiliary, or incidental to the general object and purpose of the [law] as expressed in its title, ….” Rohan
v Detroit Racing Ass’n, 314 Mich 326, 357 (1946) (emphasis added); see also, Price v Township Bd
of Oakfield, 182 Mich 216, 223 (1914) (finding that the body of an amendment fell outside the
scope of the title when the title related to prohibition of liquor traffic while the body of the amend-
ment provided for regulation of liquor traffic). “Insofar as one of the purposes of the Title-Object
Clause is to provide notice of the content of a bill to the Legislature and the public, a more specific
title better achieves that purpose, […].” Kevorkian, 447 Mich at 458.
Ultimately, when courts in Michigan evaluate whether there is a title-body problem, they essentially
look to see whether the title of an amended law (whether or not the title itself is amended) corre-
sponds to the body of the amendment.
In Rohan v Detroit Racing Ass’n, the court held that an amendment did violate the TOC due to a
title-body problem because the amendment itself did more than what the title communicated. 314
Mich 326 (1946). The statute at issue addressed horse racing. The title stated in full:
An Act to provide, regulate and license the conducting of racing meets in the state of
Michigan; to create the office of Michigan racing commissioner, to prescribe his
powers and duties and to provide for this salary and expenses; to legalize and permit
auction pools, the pari-mutuel or certificate method of wagering on the result of
races at licensed race meetings in the state of Michigan; to appropriate the funds de-
rived therefrom; to render inapplicable all acts or parts of acts in conflict therewith,
and to provide penalties for the violation thereof
The body of the amendment authorized the Department of Agriculture to lease public land for
horse racing. The Supreme Court held that, even though leasing land for horse racing is related to
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 6 of 17

the law’s object which was horse racing, nothing in the title provided the legislature fair notice that
the body of the amendment would also contain a public land leasing provision. Id at 355-58.
The question to ask about Act 359 is, did the title adequately express the object of the bill so as to
provide fair notice to the legislature? Act 359 amended the title of Act 218 by adding three phrases
that relate to the utility tunnel. The new title reads:
AN ACT authorizing the Mackinac bridge authority to acquire a bridge and a utility
tunnel connecting the Upper and Lower Peninsulas of Michigan, including cause-
ways, tunnels, roads and all useful related equipment and facilities, including park,
parking, recreation, lighting, and terminal facilities; extending the corporate existence
of the authority; authorizing the authority to enjoy and carry out all powers incident
to its corporate objects; authorizing the appropriation and use of state funds for the
preliminary purposes of the authority; providing for the payment of the cost of the
bridge and authorizing the authority to issue revenue bonds payable solely from the
revenues of the bridge; granting the right of condemnation to the authority; granting
the use of state land and property to the authority; making provisions for the pay-
ment and security of bonds and granting certain rights and remedies to the holders
of bonds; authorizing banks and trust companies to perform certain acts in connec-
tion with the payment and security of bonds; authorizing the imposition of tolls and
charges; authorizing the authority to secure the consent of the United States govern-
ment to the construction of the bridge and to secure approval of plans, specifica-
tions, and location of the bridge; authorizing employment of engineers regardless of
whether those engineers have been previously employed to make preliminary inspec-
tions or reports with respect to the bridge; authorizing the state transportation de-
partment to operate and maintain the bridge or to contribute to the bridge and enter
into leases and agreements in connection with the bridge; exempting bonds and the
property of the authority from taxation; prohibiting competing traffic facilities; au-
thorizing the operation of ferries by the authority; authorizing the creation of the
Mackinac Straits corridor authority; authorizing the operation of a utility tunnel by
the authority or the Mackinac Straits corridor authority; providing for the construc-
tion and use of certain buildings; and making an appropriation.
The words that Act 359 added to Act 214 are highlighted in green. Highlighted in yellow are the
words that relate expressly or obviously to a bridge and not to a tunnel.
The title states that Act 359 does the following in relation to a utility tunnel:
• Authorizes the Mackinac Bridge Authority to acquire a utility tunnel
• Authorizes the creation of the corridor authority
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 7 of 17

• Authorizes either the Mackinac Bridge Authority or the corridor authority to operate a utility
tunnel
Contrast what the amended title in Act 359 says about the corridor authority with what Act 359 it-
self says about the corridor authority:
• Authorizes the Mackinac Bridge Authority to acquire a utility tunnel
• Authorizes the creation of the corridor authority
• Authorizes either the Mackinac Bridge Authority or the corridor authority to operate a utility
tunnel
• Creates a fund within the state treasury related to the tunnel (§ 14c)
• Causes an automatic transfer of all tunnel-related authority, and all money from the protec-
tion fund, from the Mackinac Bridge Authority to the corridor authority once the corridor
authority’s board is appointed (§ 14d(1))
• Creates a new role for the Mackinac Bridge Authority, which is to receive and review reports
from the corridor authority that describe any impacts of the utility tunnel on the bridge
(§ 14d(2))
• Declares that leasing of space in the utility tunnel to a utility is not competition with the
bridge (§ 14d(3))
• Requires the corridor authority to enter into a very specific kind of contract to construct,
maintain, operate, and decommission the utility tunnel, and describes the kind of contract it
needs to be in great detail (§ 14d(4))
• Requires the Attorney General to pay for the defense of any claim related to the utility tun-
nel should the Attorney General refuse to represent either the Mackinac Bridge Authority or
the corridor authority (§ 14d(5))
These provisions of Act 359 that are nowhere to be found in the title are significant. The provision
about the Attorney General could subject the state to hundreds of thousands of dollars in attorney
fees and constitutes a major restriction on traditional executive powers. The provision that requires
the corridor authority to enter into a contract within days of the law’s enactment forces a governing
body responsible for, among other things, the care of public trust natural resources, Const 1963, Art
4, § 52, to enter into a contract that could threaten those resources without providing it any time to
meaningfully review the contract first.
Act 359’s title provides almost no correspondence to its body. How would the legislature or the
public (who filled the room at a November Mackinac Bridge Authority meeting to complain that the
MBA should have nothing to do with an underground oil tunnel) have known from the title that the
bill purported to punish the Attorney General for not defending the law by forcing her to pay a pri-
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 8 of 17

vate attorney to do it? How would the legislature or the public have known from the title that in re-
ality, the MBA would be a mere conduit for utility tunnel governance to flow automatically to the
corridor authority once its board was appointed (which, in fact, occurred within a week of enact-
ment)? Clearly, the amended title, which added less than forty words about the corridor authority
and utility tunnel, did not adequately express the body of the amendment. The amended title did not
provide fair notice to the legislature that the body of the amendment would address the items in §§
14c & 14d.
Act 214’s object was to authorize an already existing authority to construct and operate a ve-
hicle bridge. Act 359’s object is to create a new authority and authorize it to construct and
operate an underground tunnel for the transport of oil. Because Act 359 creates a single law
with multiple objects, it violates Const 1963 Art 4, § 24.
A law with multiple objects violates the TOC and is void in its entirety. The “object” of a law is its
general purpose or aim. Local No. 1644 v. Oakwood Hosp. Corp., 367 Mich 79, 91 (1962). If the
legislature is going to enact a law by amending an existing law, the object of the new law must be
germane, auxiliary, or incidental to that of the existing law. City of Livonia v Department of Social
Services, 423 Mich 466 (1985). “The ‘one object’ provision must be construed reasonably, not in so
narrow or technical a manner that the legislative intent is frustrated.” Kuhn v Dep't of Treasury, 384
Mich 378, 387–388 (1971). “However, if the act contains ‘subjects diverse in their nature, and having
no necessary connection,’ ” it violates the TOC. Livonia, 423 Mich at 499. Even when a single title
manages to address two different objects, the “two distinct and unrelated objects [] embraced in []
one act […] offend[] against the constitutional provision.” Kent County ex rel Board of Supervisors
v Reed, 243 Mich 120, 122-23 (1928). “A prohibition against the passage of an act relating to differ-
ent objects expressed in the title makes the whole act void[]” and thus not subject to severability. In
re Advisory Opinion (Being 1975 PA 227), 396 Mich 123, 131 (1976).
In Hildebrand v Revco Discount Drug Centers, the question was whether a statute that regulated
polygraph examiners could lawfully contain a provision that subjected employers to a penalty if they
terminated employment based on polygraph results. 137 Mich App 1 (1984). The court held that the
object of the law regulating polygraph examiners was an object separate and apart from the provi-
sions relating to employer penalties. Id at 7-9. Both were about polygraphs and their relevance, but
the object of each was fundamentally different.
In People v Carey, the court considered a provision that gave public service commission inspectors
the status of peace officers in a statute – the Motor Carrier Act – whose object was to authorize the
commission to supervise and regulate for-hire motor vehicle transportation. 382 Mich 285 (1969). In
spite of the fact that both the title and body of the law contained language about inspection and en-
forcement, the provision granting inspectors peace officer status diverged too much from the object
of the statute being amended. Id at 295-97.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 9 of 17

The prior section explained why the title of Act 359 does not embrace its object and content. In ad-
dition, by amending Act 214, Act 359 added an object that is completely unlike and not necessarily
connected to the object of Act 214, thus violating the prohibition against a law containing multiple
objects.
Act 359 took a law that for over sixty years has been about the MBA constructing and operating a
bridge to allow vehicles to cross the Mackinac Straits, and combined that with a law that creates a
different authority that will construct and operate an underground tunnel to convey oil beneath the
Mackinac Straits. The object of Act 214 is to get cars and trucks over the Straits, while the object of
Act 359 is to move oil underground.
Additionally, Act 359 is in part an organic law that has as one of its primary objects the creation of a
governing body, while Act 214 simply took a governing body that already existed and authorized it
to construct and operate infrastructure. Act 214 did not create the MBA. Two years before Act 214’s
enactment, Act 21 created the MBA. Instead, Act 214 authorized the already created MBA to oper-
ate and maintain the vehicle bridge and raise revenues for it. By contrast, Act 359 is both an organic
law and a law about constructing and operating infrastructure. The Supreme Court has said that the
“legislature may empower a body created by it to do everything requisite, necessary, or expedient to
carry out the principal objective to be attained.” Local No 644 v Oakwood Hosp Corp, 367 Mich
79, 91 (1962). With Act 359, however, the legislature created a corridor authority that does nothing
and is incapable of doing anything about the Mackinac Bridge or anything else from Act 214. Act
359 both creates a brand new authority and authorizes the new authority to operate an underground
energy tunnel. One of the principal objects, then, of Act 359 is to create a governing body to operate
an underground tunnel to transport oil, which is an object Act 214 does not share.
Because Act 359 creates a new, separate corridor authority and then divests the MBA of any author-
ity over the utility tunnel, Act 214 and Act 359 cannot be characterized as having a shared single ob-
ject of operating infrastructure. Act 359 uses the MBA as a vehicle for creating the corridor author-
ity, but then strips the MBA of any authority regarding the utility tunnel from the moment the board
for the corridor authority is appointed. The purpose of Act 359 was never to grant any powers or
duties regarding the utility tunnel to the MBA. Rather, referencing the MBA was a mere ruse to pass
the powers and duties regarding the tunnel through the MBA to the corridor authority, which in fact
happened within days of enactment.
Moreover, section 14d, which transfers powers and duties from the MBA to the corridor authority,
contains the majority of substantive law defining the new corridor authority’s powers and duties.
There is no establishment of authority over the utility tunnel absent the transfer of such powers to
the corridor authority. In other words, had the corridor authority not been formed, the powers and
duties contained in section 14d would not have been the MBA’s powers and duties. Section 14d only
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 10 of 17

allows for the corridor authority to have those powers and duties. In fact, section 14d ends by stat-
ing that the “corridor authority board shall exercise its duties independently of the state transporta-
tion department and the Mackinac bridge authority.” Therefore, there is no plausible argument that
Act 214 and Act 359 share the object of the MBA governing infrastructure, or that the legislature
had to enact Act 214 as an amendment to Act 359 due to its reliance on the MBA.

Question 2
Does the requirement that members of the board of the Corridor Authority
serve for six years or more violate the constitutional mandate under section 3 of
article 5 of the Michigan Constitution of 1963 that the terms of office of any
board or commission created or enlarged after January 1, 1964 must not exceed
four years?

Yes, Act 359 creates a board whose members can serve for six years or more, which plainly violates
the constitutional four-year limit on board member terms. The constitution is abundantly clear that
members of boards created by law can serve no more than four years. In hastily working to enact
Act 359 during the lame duck session in part to try to prevent the next governor of a different politi-
cal party from being able to make appointments to the board during her initial term in office, the
legislature created a board whose members can serve six or more years.

The Michigan Constitution restricts board membership to four years, providing that “[t]erms of of-
fice of any board or commission created or enlarged after [Jan. 1, 1964] shall not exceed four years
except as otherwise authorized in this constitution.” Art 5, §3. See also, Civil Service Com’n v De-
partment of Labor, 424 Mich 571, 611 (1986) (concluding that the Michigan Constitution limits to
four years the term that members of a board created by law can serve).

Section 14b(2) provides in full (with emphasis added):

The Mackinac Straits corridor authority shall exercise its duties through the corridor
authority board. The corridor authority board shall consist of 3 members appointed
by the governor with the advice and consent of the senate. No more than 2 of the
corridor authority board members shall be members of the same political party. Mem-
bers of the corridor authority board shall serve for terms of 6 years or until a successor is appointed
and qualified, whichever is later.

When Michigan courts examine the constitutionality of statutes, “[s]tatutes are presumed to be con-
stitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 11 of 17

is clearly apparent.” Taylor v. Smithkline Beecham Corp, 468 Mich 1, 6 (Mich 2003). Section 14b(2)
clearly violates the Michigan Constitution’s unambiguous limit on the term of years.

The board of the Corridor Authority is a “board or commission”. Const 1963, Art 5, §3. Act 359 al-
lows members of the board of the Corridor Authority to serve terms of six or more years. Because a
six year term is greater than the four-year term limit that the Michigan Constitution mandates, Act
359 is unconstitutional. See also, 2015 Mich OAG No 7178 (Aug 2, 2005) (explaining that section 3
of article 5 is self-executing and that its meaning is unambiguous as to the four-year maximum term
of service on a board or commission created by law); 2007 Mich OAG No 7200 (Feb 23, 2007)
(confirming the interpretation of section 3 of article 5).

Question 3
Does Act 359 revise, alter, or amend other sections of law, including any re-
strictions on the construction or operation of a tunnel included in Section 18 of
Public Act 214 of 1952, in a manner that violates Section 25 of Article IV of the
Michigan Constitution of 1963?
Yes, Act 359 of 2018 was enacted in violation of Article IV, Section 25 of the Michigan Constitution
of 1963 which states as follows: “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 reenacted and published at
length”. Controlling authority of the Michigan Court of Appeals, In re Application of International
Transmission Co. for Expedited Siting Certificate, 298 Mich App 338, 354 (2012) quoted the Michi-
gan Supreme Court in People v Mahaney, 13 Mich 481, 496 (1865) as follows:

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 repub-
lished, 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. But
an act complete in itself is not within the mischief designed to be remedied by this
provision, and cannot be held to be prohibited by it without violating its plain intent.

An act complete in itself will not be found to violate Article IV Section 25. Allen v. Wayne County,
388 Mich 210 (1972). But the Michigan Supreme Court in Allen adopted Justice Potter’s dissent in
People v Stimer, 248 Mich 272, 293 (1929) for the manner in which the determination of whether an
act was complete in itself would be made:

The character of an act, whether amendatory or complete in itself, is to be deter-

mined not by its title, alone, nor by the question of whether it professes to be an
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 12 of 17

amendment of existing laws, but by comparison of its provisions with prior laws left
in force, and if it is complete on the subject with which it deals it will not be subject
to the constitutional objection, but if it attempts to amend the old law by intermin-
gling new and different provisions with the old ones or by adding new provisions,
the law on that subject must be regarded as amendatory of the old law and the law
amended must be inserted at length in the new act.

The Court of Appeals in International Transmission goes on to state that “[i]f a bill under considera-
tion is intended whether directly or indirectly to revise, alter or amend the operation of previous stat-
utes, then the constitution, unless and until appropriately amended, requires that the Legislature do
in fact what it intends to do by operation.” Id. at 285.

Section 25 of Article IV was before the Michigan Supreme Court in Midland Township v. State
Boundary Commission, 401 Mich 641 (1977), and was discussed in OAG, 1975-1976, No 4896, p
132 (September 9, 1975). It requires the Legislature to reenact and republish any act which is
amended by the Legislature in another act in a manner which “disposes with” or “changes” provi-
sions of the act amended. See 1996 Mich OAG No. 6912 (Mich A.G.), 1996 WL 459814.

Act 359 was enacted in violation of the republication clause (Const 1963, art 4, § 25) for fail-
ure to reenact and republish relevant MBA law.

As stated in the Governor’s Request: “The Bridge Authority was originally created by Public Act 21
of the Extra Session of 1950 (“Act 21”) in part to determine the physical and financial feasibility of a
bridge connecting the Upper and Lower Peninsulas.” The 1950 statute limited the purpose of the
Mackinac Bridge Authority (“MBA”) to oversight of what was eventually to become known as the
Mackinac Bridge. This purpose, limited to the enormous and daunting task of facilitating vehicular
transportation between the two peninsulas of Michigan, has never been amended and has never
been reenacted by full recitation of its terms as required by Section 25 of Article IV, rendering the
effort to amend the Authority’s powers in clear violation of that constitutional provision.

As the Court of Appeals further instructed in International Transmission Co., the remaining ques-
tion is whether the clear conflict between the limited and specific purpose of Act 21 and the sweep-
ing addition of issues wholly unrelated to transportation or to the Mackinac Bridge itself (but rather
to construction, ownership, operation, and liability for a utility tunnel expected to cost in the hun-
dreds of millions of dollars) was “accidental or inadvertent.” Here, the Legislature had full
knowledge of the conflict and acted with clear intent to add unrelated issues to the statute, and any
claim of accident or inadvertence must be rejected. Michigan courts have not been persuaded by
prior attempts to justify non-compliance with Section 25 of Article IV. The Supreme Court in Allen
drove home the importance of going to the trouble of reenactment and publication at length of the
original authorization by rejecting any objection that “it would be hard work to comply with the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 13 of 17

constitution” given “technological advances in printing and copying and the Legislature’s ‘own so-
phisticated bill drafting and research services.’” Id at 283-284.

Per Allen, this is a textbook case of a statute that seeks to “directly or indirectly . . . revise, alter, or
amend the operation of previous statutes.” Much like the legislature could not read a new exception
into the structure of public improvement bonds as outlined in their organic act, so too the legislature
should be precluded from conferring new powers onto the MBA without reenactment of the under-
lying powers statute. See Midland Twp., 401 Mich 641, 649-51. Further, the hasty manner in which
this act was passed contravenes the anti-logrolling policy that underlies § 25. People ex rel Drake v.
Mahaney, 13 Mich 481, 497 (1865). The 1950 Act was required to be reenacted with the 1952 Act
because of the changes worked by the 2018 Amendments to the MBA’s powers. If the 1952 Act is
unconstitutional and the MBA never had the authority to “acquire, construct, operate, maintain, im-
prove, repair, and manage a utility tunnel,” MCL 254.324a, it follows there could be no valid transfer
of authority to the Mackinac Straits Corridor Authority (“MSCA”) under MCL 254.324b.

The 2018 Amendment to the 1952 Act works a substantive amendment to the underlying powers of
the MBA without reenacting and republishing the statute, and is therefore unconstitutional. Various
provisions capture the duties and powers of the MBA in its organic statute. For starters, the title of
the 1950 Act contemplates only transportation duties assigned to the authority. P.A. 1950 No. 21.
Nowhere does the title mention a utility tunnel. As previously discussed, the use of “tunnel” and
“utility line” is contemplated in the 1950 and 1952 Acts as relating to transportation. See supra at 2.
Further, MCL 254.301’s definition of bridge does not include a “utility tunnel” but again only con-
templates transportation related infrastructure. This provision is incorporated whole cloth without
amendment in the new statute. See MCL 254.311. Finally, and most importantly, MCL 254.302 out-
lines the powers and duties of the MBA. The operative provision in full is

(1) The Mackinac bridge authority is created within the department of transporta-
tion as a nonsalaried entity, a public benefit corporation, and an agency and in-
strumentality of the state of Michigan. The Mackinac bridge authority is a body
corporate and may by that name sue and be sued, plead and be impleaded, con-
tract and be contracted with, have a corporate seal, and enjoy and carry out all
powers granted to it in furtherance of the duty of the state of Michigan to
provide and maintain a system of highways and bridges for the use and
convenience of its inhabitants. In addition to the powers expressly granted to
it under Michigan law, the authority shall have all powers necessary or conven-
ient to carry out the things authorized and to effect the purposes of this act.

(emphasis added).
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 14 of 17

In the instant case, the Legislature skipped, and not through inadvertence or accident, a critical step.
For more than half a century the Mackinac Bridge Authority, created in 1950 by Act 214, has existed
solely for purposes related to the iconic Mackinac Bridge. The Legislature’s decision to ignore Act
21 altogether, and instead tack on a utility tunnel function to the subsequent operational provisions
of Act 214 of 1952, directly violated the requirements of Section 25 of Article IV. As a result, Act
359 of 2018 is unconstitutional.

Act 359 is also invalid because it violates Section 18 of PA 214 of 1952.

Act 359 of 2018 may also be invalid because it violates Section 18 of PA 214 of 1952. Section 18 of
PA 214 of 1952 expressly prevents the MBA from creating a “tunnel” that competes with the Mack-
inac Bridge. On its face, Act 359 of 2018 directly modifies, changes, and absolves Section 18. How-
ever, there is a significant question of fact as to whether the creation of a utility tunnel competes
with the Mackinac Bridge’s vehicular travel. An argument could be made that Section 18 only applies
to a tunnel that is designed for vehicular travel. Of relevance to this analysis, on two separate occa-
sions, the Michigan Attorney General in Opinions determined that “An act authorizing state high-
way department to operate a ferry service between the Michigan lake ports of Frankfort and Me-
nominee would be invalid under the noncompeting provisions of Section 18. Op.Atty.Gen.1957-58,
No. 3167, p. 524.” And that “Under this section [of the MBA Act], no competing traffic service may
be operated after the Mackinac Bridge is completed and open to traffic. Op.Atty.Gen.1957-58, No.
3093, p. 519.” It could be the case that a utility tunnel would circumvent vehicular travel that would be
made if the tunnel did not exist. For instance, natural gas trucks, supply vehicles, work trucks, etc
might all be rendered unnecessary because of a tunnel. Those vehicles that would ordinarily deliver
product over the bridge are now delivering product through the tunnel, and therefore directly com-
peting with the Mackinac Bridge.

If the State adopted the latter argument, then the MBA would be expressly prevented from creating the
MSCA because the creation of the MSCA competes with the Bridge, and violates Section 18. That
violation occurred through a “backdoor” process of amendment that did not comport with Section
25 of Article 4 of the Michigan Constitution because the title of the amendment and publication did
not expressly override and modify section 18 as described above.

While the authors of this memo believe there is a cogent legal argument for the unconstitutional na-
ture of amending Section 18, the authors also recognize that a significant question of fact exists as to
whether the utility tunnel competes with the bridge in the manner expressed by Section 18.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 15 of 17

Additional Cases And Attorney General Opinions Regarding Violation Of Section 25 Of Ar-
ticle 4

Amendment of title of act, after declaration of unconstitutionality of portion of act itself, no matter
what reason for finding of unconstitutionality, will not, in and of itself, suffice to resurrect voided
portion;  if voided portion is to be once again considered part of law, then law must be revised, al-
tered or amended. People v. Clabin, 411 Mich 472 (1981).

1995 Enrolled HB 4410, § 305(3), which attempts to authorize state reimbursement of counties for
housing parolees convicted of new felonies contrary to the provisions of § 4(1) of 1978 PA 16, vio-
lates Const. 1963, Art. 4, § 25, and is unconstitutional and void. Op. Atty. Gen. 1996, No. 6912,
1996 WL 459814.

Where Legislature did not reenact amendment to MCL 800.283 governing possession of weapon
while inmate after Supreme Court had declared amendment unconstitutional on grounds that title of
statute did not embrace scope of amendments, but merely changed title of act, Legislature's attempt
to rectify unconstitutionality of statutory amendment was ineffective; thus, conviction of defendant
under such amendment was invalid. People v. Clabin.

Question 6
If the Corridor Authority was not created in a manner that conforms with the
Michigan Constitution of 1963, is the Authority, its board, and action taken by
the board void?
Yes, in light of the unconstitutionality of Public Act 359 of 2018 on the basis of, inter alia, its viola-
tion of the title object clause, its unconstitutional embrace of more than one subject, its unconstitu-
tional amendment in violation of Article IV, Section 25, and its attempted inclusion of provisions
not germane to the original title, Public Act 359 and actions taken pursuant to such Public Act are
void in accordance with controlling authority of the Michigan Supreme Court.

The Supreme Court of Michigan held as follows in the case of Stanton v. Lloyd Hammond Produce
Farms, 400 Mich 135 (1977):

It is a general rule of statutory interpretation that an unconstitutional statute is void

ab initio. This principle is stated in 16 Am. Jur. 2d, Constitutional Law, s 177, pp.
402-403, as follows:

The general rule is that an unconstitutional statute, though having the

form and name of law, is in reality no law, but is wholly void, and in-
effective for any purpose; since unconstitutionality dates from the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 16 of 17

time of its enactment, and not merely from the date of the decision
so branding it, an unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Id, at p. 144.

This rule has been consistently followed in Michigan. See Adsit v. Secretary of State,
84 Mich 420 (1891); Michigan Sugar Co. v. Auditor General, 124 Mich 674; Briggs v
Campbell, Wyant & Cannon Foundry Co., 379 Mich 160 (1967); People v. Carey,
382 Mich 285 (1969) (opinion of T. M. Kavanagh, J.); and Horrigan v. Klock, 27
Mich App 107 (1970).

The Stanton case goes on to state as follows:

Briggs v. Campell, Wyant & Cannon Foundry Co., supra, involved the question of
whether an amendatory state statute could apply retroactively in order to cure defects
of a statute previously declared unconstitutional. In discussing this issue, the Briggs
Court held that the prior unconstitutional statute was void from the date of its pas-
sage and, therefore, could not be cured retroactively by a subsequent statutory
amendment, unless the contrary clearly appeared from the context of the statute it-
self.

In Horrigan v. Klock, supra, the Court of Appeals followed the rule that an uncon-
stitutional statute is void ab initio, which was reaffirmed in Griggs, in holding that
Maki v. East Tawas, 18 Mich App 109 (1969), aff’d 385 Mich 151 (1971), which de-
clared a state statute to be unconstitutional, was “fully retroactive”. See Pittman v
City of Taylor, 398 Mich 41, 46 (1976).

The force and rationale of the general rule could not be more on-point than in the circumstance of
Public Act 359 of 2018. As stated in the Governor’s Request:

On November 8, 2018, Senate Bill 1197 (“SB 1997”) was introduced in the Michigan
Senate seeking to amend Act 214 and expand the powers of the Bridge Authority to
authorize it, separate and apart from the bridge, to acquire, construct, operate, main-
tain, improve, repair, and manage a utility tunnel for the purpose of accommodating
utility infrastructure, including pipelines, electric transmission lines, facilities for the
transmission of data and telecommunications, all useful and related facilities, equip-
ment, and structures, and all necessary tangible or intangible real and personal prop-
erty, licenses, franchises, easements, and rights-of-way. After introduction, SB 1197
was amended on its passage through the Michigan Senate on December 3, 2018 to
add additional purposes, including the creation of the Corridor Authority as a sepa-
rate new state authority and authorizing the operating of the tunnel by the Bridge
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 17 of 17

Authority or the Corridor Authority. The bill was further amended on its passage
through the Michigan House of Representatives.

As amended, SB 1197 was approved by the legislature, signed by the governor, and
became Act 359 on December 12, 2018. Under Act 359, the Bridge Authority, sepa-
rate and apart from its authorized activities relating to the bridge, is authorized,
among other things, to acquire, construct, operate, maintain, improve, repair, and
manage a utility tunnel, determine the rates charged for services offered by the utility
tunnel, and enter into contracts or agreements necessary to perform its duties under
Act 214. Act 359 provides for a single tunnel joining and connecting the Upper and
Lower Peninsulas at the straits of Mackinac.

Less than three weeks later, on January 1, 2019, newly-elected Governor Whitmer authored the
Governor’s Request to which this Opinion responds.

The wholly accurate recitation of the course of legislation contained in the Governor’s Request lays
to rest any argument that a rarely-invoked exception to the rule that an unconstitutional statute is
void ab initio applies here. That exception obtains only in the event of justifiable reliance by per-
sons having every reason to believe that a given statute constituted applicable law and could be re-
lied upon. See, e.g., discussion in Justice Fitzgerald’s dissent in Stanton at p. 151. In the instant case,
the contractual undertakings of the pipeline owner and the State of Michigan occurred either before
the Corridor Authority was ever created or in conjunction with its creation. The creation of the Cor-
ridor Authority occurred in legislation pending only a handful of days and was followed almost im-
mediately by the January 1 request by Governor Whitmer raising multiple questions of constitutional
infirmity. Neither the pipeline company nor the Corridor Authority, the creation of which was un-
constitutional, can complain that there was justification for taking any detrimental steps in reliance
on a statute the constitutionality of which was certain to be challenged and which was challenged
with almost immediate alacrity.

The actions of the Bridge Authority taken solely pursuant to the provisions of the unconstitutional
amendatory act are null and void. Likewise, the actions of the Corridor Authority, the purported au-
thority for which arises out of unconstitutional legislation, are in their entirety null and void. The
parties to any contract or other action which depends upon or contemplates the authority and power
of the Bridge Authority to own and operate a utility tunnel are subject to, limited to, and controlled
by the status quo ante pursuant to which Public Act 21 of the Extra Session of 1950 and Public Act
214 of 1952 remain in full force and effect.