By Ben Solis
Gongwer News Service
Does the House clerk have an inherent and constitutional duty to present enrolled bills to the governor, and even in the case of previously passed bills in a new session of the Legislature? The plaintiffs in Senate v. House (COC Docket No. 25-000014) argued that they do in a hearing before the Court of Claims.
The case was the subject of oral arguments on Monday before Judge Sima Patel. The Senate and Majority Leader Winnie Brinks (D-Grand Rapids) have asked Patel to grant summary disposition for the upper chamber and hold that the House clerk has a duty to present nine bills passed in the 2024 legislative session that were withheld from presentation when the 2025 session started.
Aside from the motion for summary disposition, Brinks and the Senate are seeking a writ of mandamus compelling the House to present the nine bills to the governor and seeks a declaratory judgment that the House has a constitutional duty to present the bills.
The House and Speaker Matt Hall (R-Richland Township) asked Patel to dismiss the lawsuit. His main argument was that that the 102nd Legislature ended upon the final adjournment of its second regular session and did not carry over into the current 103rd Legislature. The Senate has failed to point to constitutional text, case law or any other authority that would support its novel claim that the 103rd Legislature has a duty – much less a clear one, as is needed to prevail on their mandamus claim – to present bills passed by a prior Legislature.
Brinks and the Senate have argued that they were entitled to summary disposition and have standing, and that the claims are justiciable and are entitled to mandamus relief.
Arguing on behalf of the Senate and Brinks on Monday was attorney Mark Brewer of Goodman Acker. Brewer said it was clear the House and its clerk had a legal duty to present the bills at issue.
"On the text of Article IV, Section 33 indicated that every bill passed by the Legislature shall be presented to the governor. The Michigan Supreme Court has long ruled that shall means shall … and the Supreme Court has also held that the constitutional provisions in the Presentment Clause are 'that which regulate the presentation, approval and veto of bills by the executive are mandatory, and the procedure thus established cannot be enlarged, curtailed, changed, or qualified by the legislative body,'" Brewer said. "So, not only is the text of the Constitution clear, but it's also clear that the (Constitutional Convention) delegates who drafted that text understood that they were imposing a duty on the Legislature, and on the legislative body in which a bill originated, to present bills to the governor."
Brewer doubled down on the Constitutional Convention record, noting delegates repeatedly spoke of the duty of a particular chamber, whether that be secretary of the Senate or the clerk of the House, having an obligation to execute the duty of presenting a session's enrolled yet unpresented bills, whether current or past.
Patel asked about the House's argument that the Constitution was silent on who had the duty to present a particular session's enrolled bills. With that in mind, Patel wondered if that affected Brewer's argument that mandamus relief was appropriate based on legal duty.
Brewer said it did not affect his argument at all, because the language was clear on the duty to present.
"They made it very clear that the duty devolves onto the house in which a bill originated, in this case, the House, and then it further devolves onto either the secretary of the Senate in the case of the Senate, or the clerk of the House in that case," Brewer said. "The duty passes down. Obviously, institutions can't do anything. They are inanimate objects. They act through their agents. And the agent of the House in this case is the clerk of the House, who has the duty to present these bills. That was the understanding in the con-con debates as to how this would be operationalized."
As to the arguments of Hall and the House that the duty abates in a subsequent session, Brewer said "the language (of the Constitution) is absolute."
"There are no exceptions in Section 33 that says, 'Oh, this duty abates at the end of a legislative session or it doesn't continue.' It's an absolute, clear duty, without exception, the bills have to be presented," he said. "Again, the legislative practice indicates that the Legislature has understood that for decades. Indeed, the rest of the text of Section 33 goes on to talk about the veto power of the governor and what happens if the bills are presented and the Legislature adjourns. It's clearly contemplated by the text, as well as by the compound debates, that there would be presentation of bills subsequent to the adjournment of a legislative session."
As long ago as the late 1800s, Brewer added, the U.S. Supreme Court ruled that a duty enforced through mandamus action does not abate when the individuals holding public office change, because the duty is on the institution and not so much the individual.
To arguments that a bill, even if passed and enrolled, naturally dies at the end of a given even year session, Brewer said that provision – found in Article IV, Section 30 – was unapplicable in this case because the more specific provision dealing with passed bills is spelled out in Section 33. The only delay contemplated by the delegates was a brief delay to print bills or if there was a long queue of bills to be presented.
"These bills were enrolled. They were ready to be presented, and but for the unconstitutional order of the House speaker, they would have been presented on or before January 8," Brewer said. "The time for these ministerial tasks to be performed is over. It's done. And there's no reason why these bills can't be presented immediately upon issuance of the court order."
Hall and the House have suggested that because the previous session of the Legislature didn't adjourn sine die, or didn't pass some kind of motion to adjourn, that is some obstacle to presentation. Brewer balked at the assertion. Technical problems were cited as a reason not to present them to Governor Gretchen Whitmer, but Berwer said there was no exception for technical problems, either.
Wrapping up his arguments, Brewer brought Patel's attention to the fact that having a duty in the Constitution that goes unenforced creates an empty letter or ghost in the law, which could cause future harm to the Legislature's processes if allowed to remain empty.
Patel questioned whether, outside the language in the Constitution and the Legislature's own rules, there was a clear legal authority for the clerk to present any bill to the governor. Brewer again pointed to the constitutional convention debates. Patel also asked if there was anything preventing the Senate itself from presenting the bills even though they did not originate there.
Brewer said it was his understanding that duty rests with the chamber that created and passed the bills first before moving to the other chamber for concurrence or further changes before being moved on to enrollment and presentation.
The judge said she was still digesting the political question, as Patel said she was grappling with the Legislature's ability to change its own rules, including those involving presentation. Brewer said that even if the rules are silent on the matter, the clerk still has a duty to present.
Kyle Asher of Dykema Gossett, representing the Hall and the House, said the dispute between the chambers was unprecedented and so was the Senate's request to have the court intervene.
That's led Hall and the House to question whether the case was justiciable at all and argued the Senate did not have standing, Asher said. The lack of the authority of the judiciary to decide the outcome of the spat and order another branch to present old bills to the governor – coupled with the vague references to Constitutional Convention debates – further solidified the House's argument that summary disposition should be granted its favor.
"I don't think there's any dispute that this court would have to break new ground in several ways. To start, you'd have to find that article four, Section 33 of Michigan's Constitution, requires someone to present bills to the governor," Asher said. "And if that's the case, this court would then have to extend that duty to find that someone of the new Legislature has this duty to present bills that the new Legislature was never involved in."
Patel asked for Asher to respond to Brewer's argument on the ghost provision. If the House was correct, Patel said, then the provision would lack teeth to enforcement on enrollment and presentation for any bills the chambers duly pass.
Asher said he didn't agree with Brewer's characterization of the provision.
"No matter how you read the Constitution, whether it's to require the current Legislature to present bills passed by that same Legislature, which we're not saying is not a correct reading.
We're not really taking any issue on that," Asher said. "But the issue that's before you on a mandamus claim is whether there's a clear legal duty for this current legislature to present bills passed by the prior legislature."
Patel asked Asher to point her to any legal authority that supports his proposition that the clerk or the chamber does not have an obligation to present. Asher noted a case out of New York where a Senate bill passed in 1994 but was never presented to the governor before its lawmakers adjourned the session. The plaintiffs there also sought a declaration that the bills should be presented and directed the new session to present them.
Asher said the court did declare that presentment was required of the new session's lawmakers, but the court did not take a crucial second step in declaring that the duty to present rested with the new session's lawmakers or their clerks or secretaries. The judge in that case, Asher said, called the move a resuscitation by judicial decree that would be disproportionate and harmful in future sessions.
"We haven't asked you to rule that the Constitution allows the current Legislature to withhold bills passed by that same Legislature, or that the 102nd Legislature should not have presented the bills to the governor, although, again, given the mandamus standards, I think that's still an uphill battle for the court to actually issue relief in that instance," Asher said. "But what we have said, and all that matters here, and that's consistent with the New York court's refusal to resuscitate a bill for a prior Legislature, is that the 103rd Legislature lacks any clear legal duty to present a bill passed by the 102nd Legislature."
Asher added later that forcing the current Legislature, which did not vote to pass the bills and had no involvement in them as the majority party has changed sides, was an extraordinary remedy. He also noted there was ample time to present the bills in the previous legislative session but that did not occur.
"If the Senate was really so concerned that it brought emergency litigation … (in) this issue within three days, it could have brought that emergency litigation within that time period, and for whatever reason, the Senate failed to do so, for whatever reason. I don't know what that reason is, the past clerk failed to present the bills," Asher said. "The remedy is not to then force the current clerk, who 'under the House rules has a duty, has an obligation under the House rules,' (to present the bills. Those provisions) aren't just visible. We can freely set those aside, but the only obligation under those rules is to present bills that are passed by that Legislature, not a prior Legislature."
Asher also said the Senate's reliance on past practice was a means of writing loose interpretations into the text of the Constitution, which the court should avoid as it was a blatant breach of the separation of powers between the branches.
Patel said it would take some time for her to get a ruling together on the case and that it wouldn't be happening tomorrow after the deadline for the House to respond to the motion for summary disposition, she said.
It is a foregone conclusion that each side will likely appeal all the way up the ladder to the Michigan Supreme Court, which will ultimately issue the final say on the clerk's duty to present bills even after a legislative session has ended.
Gongwer News Service
Does the House clerk have an inherent and constitutional duty to present enrolled bills to the governor, and even in the case of previously passed bills in a new session of the Legislature? The plaintiffs in Senate v. House (COC Docket No. 25-000014) argued that they do in a hearing before the Court of Claims.
The case was the subject of oral arguments on Monday before Judge Sima Patel. The Senate and Majority Leader Winnie Brinks (D-Grand Rapids) have asked Patel to grant summary disposition for the upper chamber and hold that the House clerk has a duty to present nine bills passed in the 2024 legislative session that were withheld from presentation when the 2025 session started.
Aside from the motion for summary disposition, Brinks and the Senate are seeking a writ of mandamus compelling the House to present the nine bills to the governor and seeks a declaratory judgment that the House has a constitutional duty to present the bills.
The House and Speaker Matt Hall (R-Richland Township) asked Patel to dismiss the lawsuit. His main argument was that that the 102nd Legislature ended upon the final adjournment of its second regular session and did not carry over into the current 103rd Legislature. The Senate has failed to point to constitutional text, case law or any other authority that would support its novel claim that the 103rd Legislature has a duty – much less a clear one, as is needed to prevail on their mandamus claim – to present bills passed by a prior Legislature.
Brinks and the Senate have argued that they were entitled to summary disposition and have standing, and that the claims are justiciable and are entitled to mandamus relief.
Arguing on behalf of the Senate and Brinks on Monday was attorney Mark Brewer of Goodman Acker. Brewer said it was clear the House and its clerk had a legal duty to present the bills at issue.
"On the text of Article IV, Section 33 indicated that every bill passed by the Legislature shall be presented to the governor. The Michigan Supreme Court has long ruled that shall means shall … and the Supreme Court has also held that the constitutional provisions in the Presentment Clause are 'that which regulate the presentation, approval and veto of bills by the executive are mandatory, and the procedure thus established cannot be enlarged, curtailed, changed, or qualified by the legislative body,'" Brewer said. "So, not only is the text of the Constitution clear, but it's also clear that the (Constitutional Convention) delegates who drafted that text understood that they were imposing a duty on the Legislature, and on the legislative body in which a bill originated, to present bills to the governor."
Brewer doubled down on the Constitutional Convention record, noting delegates repeatedly spoke of the duty of a particular chamber, whether that be secretary of the Senate or the clerk of the House, having an obligation to execute the duty of presenting a session's enrolled yet unpresented bills, whether current or past.
Patel asked about the House's argument that the Constitution was silent on who had the duty to present a particular session's enrolled bills. With that in mind, Patel wondered if that affected Brewer's argument that mandamus relief was appropriate based on legal duty.
Brewer said it did not affect his argument at all, because the language was clear on the duty to present.
"They made it very clear that the duty devolves onto the house in which a bill originated, in this case, the House, and then it further devolves onto either the secretary of the Senate in the case of the Senate, or the clerk of the House in that case," Brewer said. "The duty passes down. Obviously, institutions can't do anything. They are inanimate objects. They act through their agents. And the agent of the House in this case is the clerk of the House, who has the duty to present these bills. That was the understanding in the con-con debates as to how this would be operationalized."
As to the arguments of Hall and the House that the duty abates in a subsequent session, Brewer said "the language (of the Constitution) is absolute."
"There are no exceptions in Section 33 that says, 'Oh, this duty abates at the end of a legislative session or it doesn't continue.' It's an absolute, clear duty, without exception, the bills have to be presented," he said. "Again, the legislative practice indicates that the Legislature has understood that for decades. Indeed, the rest of the text of Section 33 goes on to talk about the veto power of the governor and what happens if the bills are presented and the Legislature adjourns. It's clearly contemplated by the text, as well as by the compound debates, that there would be presentation of bills subsequent to the adjournment of a legislative session."
As long ago as the late 1800s, Brewer added, the U.S. Supreme Court ruled that a duty enforced through mandamus action does not abate when the individuals holding public office change, because the duty is on the institution and not so much the individual.
To arguments that a bill, even if passed and enrolled, naturally dies at the end of a given even year session, Brewer said that provision – found in Article IV, Section 30 – was unapplicable in this case because the more specific provision dealing with passed bills is spelled out in Section 33. The only delay contemplated by the delegates was a brief delay to print bills or if there was a long queue of bills to be presented.
"These bills were enrolled. They were ready to be presented, and but for the unconstitutional order of the House speaker, they would have been presented on or before January 8," Brewer said. "The time for these ministerial tasks to be performed is over. It's done. And there's no reason why these bills can't be presented immediately upon issuance of the court order."
Hall and the House have suggested that because the previous session of the Legislature didn't adjourn sine die, or didn't pass some kind of motion to adjourn, that is some obstacle to presentation. Brewer balked at the assertion. Technical problems were cited as a reason not to present them to Governor Gretchen Whitmer, but Berwer said there was no exception for technical problems, either.
Wrapping up his arguments, Brewer brought Patel's attention to the fact that having a duty in the Constitution that goes unenforced creates an empty letter or ghost in the law, which could cause future harm to the Legislature's processes if allowed to remain empty.
Patel questioned whether, outside the language in the Constitution and the Legislature's own rules, there was a clear legal authority for the clerk to present any bill to the governor. Brewer again pointed to the constitutional convention debates. Patel also asked if there was anything preventing the Senate itself from presenting the bills even though they did not originate there.
Brewer said it was his understanding that duty rests with the chamber that created and passed the bills first before moving to the other chamber for concurrence or further changes before being moved on to enrollment and presentation.
The judge said she was still digesting the political question, as Patel said she was grappling with the Legislature's ability to change its own rules, including those involving presentation. Brewer said that even if the rules are silent on the matter, the clerk still has a duty to present.
Kyle Asher of Dykema Gossett, representing the Hall and the House, said the dispute between the chambers was unprecedented and so was the Senate's request to have the court intervene.
That's led Hall and the House to question whether the case was justiciable at all and argued the Senate did not have standing, Asher said. The lack of the authority of the judiciary to decide the outcome of the spat and order another branch to present old bills to the governor – coupled with the vague references to Constitutional Convention debates – further solidified the House's argument that summary disposition should be granted its favor.
"I don't think there's any dispute that this court would have to break new ground in several ways. To start, you'd have to find that article four, Section 33 of Michigan's Constitution, requires someone to present bills to the governor," Asher said. "And if that's the case, this court would then have to extend that duty to find that someone of the new Legislature has this duty to present bills that the new Legislature was never involved in."
Patel asked for Asher to respond to Brewer's argument on the ghost provision. If the House was correct, Patel said, then the provision would lack teeth to enforcement on enrollment and presentation for any bills the chambers duly pass.
Asher said he didn't agree with Brewer's characterization of the provision.
"No matter how you read the Constitution, whether it's to require the current Legislature to present bills passed by that same Legislature, which we're not saying is not a correct reading.
We're not really taking any issue on that," Asher said. "But the issue that's before you on a mandamus claim is whether there's a clear legal duty for this current legislature to present bills passed by the prior legislature."
Patel asked Asher to point her to any legal authority that supports his proposition that the clerk or the chamber does not have an obligation to present. Asher noted a case out of New York where a Senate bill passed in 1994 but was never presented to the governor before its lawmakers adjourned the session. The plaintiffs there also sought a declaration that the bills should be presented and directed the new session to present them.
Asher said the court did declare that presentment was required of the new session's lawmakers, but the court did not take a crucial second step in declaring that the duty to present rested with the new session's lawmakers or their clerks or secretaries. The judge in that case, Asher said, called the move a resuscitation by judicial decree that would be disproportionate and harmful in future sessions.
"We haven't asked you to rule that the Constitution allows the current Legislature to withhold bills passed by that same Legislature, or that the 102nd Legislature should not have presented the bills to the governor, although, again, given the mandamus standards, I think that's still an uphill battle for the court to actually issue relief in that instance," Asher said. "But what we have said, and all that matters here, and that's consistent with the New York court's refusal to resuscitate a bill for a prior Legislature, is that the 103rd Legislature lacks any clear legal duty to present a bill passed by the 102nd Legislature."
Asher added later that forcing the current Legislature, which did not vote to pass the bills and had no involvement in them as the majority party has changed sides, was an extraordinary remedy. He also noted there was ample time to present the bills in the previous legislative session but that did not occur.
"If the Senate was really so concerned that it brought emergency litigation … (in) this issue within three days, it could have brought that emergency litigation within that time period, and for whatever reason, the Senate failed to do so, for whatever reason. I don't know what that reason is, the past clerk failed to present the bills," Asher said. "The remedy is not to then force the current clerk, who 'under the House rules has a duty, has an obligation under the House rules,' (to present the bills. Those provisions) aren't just visible. We can freely set those aside, but the only obligation under those rules is to present bills that are passed by that Legislature, not a prior Legislature."
Asher also said the Senate's reliance on past practice was a means of writing loose interpretations into the text of the Constitution, which the court should avoid as it was a blatant breach of the separation of powers between the branches.
Patel said it would take some time for her to get a ruling together on the case and that it wouldn't be happening tomorrow after the deadline for the House to respond to the motion for summary disposition, she said.
It is a foregone conclusion that each side will likely appeal all the way up the ladder to the Michigan Supreme Court, which will ultimately issue the final say on the clerk's duty to present bills even after a legislative session has ended.
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