1. The Two-Part Test of the Westervelt Lead Opinion

Const 1963, art 4, § 1 declares, “The legislative power of the State of Michigan is vested in a senate and a house of representatives.” Const 1963, art 3, § 2 states, “The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” This separation-of-powers proposition seems to be straightforward, yet the courts have had difficulty in determining what constitutes legislative power and how much discretion is afforded a body to which the Legislature has delegated legislative power. In the Michigan Supreme Court’s remand order in the instant case, the order specifically cited the lead opinion in Westervelt, which strongly implies that the Michigan Supreme Court accepts the two-part test expressed in the Westervelt lead opinion. Aside from the Separation of Powers Clause, this test also involves the Due Process Clause.[3] This test requires that in order for legislation that delegates legislative powers to be constitutional, the legislative language must contain “standards * * * as reasonably precise as the subject matter of the legislation ‘requires or permits,’” and it must provide safeguards “assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials.” 402 Mich at 444-45.[4] The standards question is the separation-of-powers component, while the safeguards question is the due-process component. Under either component, 2004 PA 326 does not pass constitutional muster.

[3] The Due Process Clause is located at Const 1963, art 1, §17.

[4] Westervelt was a 3-3 opinion. All six participating justices held that the delegation was not improper. The three-justice lead opinion stated that the delegation challenge has both a separation-of-powers component and a due-process component, while the remaining three indicated that the sole test was the standards test — i.e., only the seraration-of-powers component. As noted above, the Michigan Supreme Court's citation of the lead opinion in the remand order strongly suggests that the Court considers the lead opinion and its two-part test to be controlling in this case.

The Westervelt lead opinion refers to its test as the "standards test." But other courts use that same title for a test that does not contain a due-process component. To avoid confusion, the Westervelt lead opinion's test will be referred to as such, or it will be referred to as "the two-part test."