c. Constitutional convention activity

In Studier v Michigan Public School Employees’ Retirement Board, 472 Mich 642 (2005), this Court discussed the role of constitutional convention delegate statements in the common-understanding analysis:

[A]lthough this Court has continually recognized that constitutional convention debates are relevant to determining the meaning of a particular provision, Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156 (2003); People v Nash, 418 Mich 196, 209 (1983) (opinion by Brickley, J.), we take this opportunity to clarify that, when necessary, the proper objective in consulting constitutional convention debates is not to discern the intent of the framers in proposing or supporting a specific provision, but to determine the intent of the ratifiers in adopting the provision, [People v Nutt, 469 Mich 565, 574 (2004)].13 We highlighted this distinction in Univ of Michigan Regents v Michigan, 395 Mich 52, 59-60 (1975), in which we stated:

The debates must be placed in perspec-tive. They are individual expressions of concepts as the speakers perceive them (or make an effort to explain them). Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures.

Therefore, we will turn to the committee debates only in the absence of guidance in the constitutional language . . . or when we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept.


13 "Constitutional Convention debates and the Address to the People are certainly relevant as aids in determining the intent of the ratifiers." (Emphasis added.)

Id. at 655-56.

On April 18, 1962, at the constitutional convention, the committee in charge of eminent domain presented its proposed language governing takings. One change the committee suggested from the 1908 constitutional provision was language stating that "property shall not be taken or damaged" without just compensation, thereby indicating that compensation is due to parties who are damaged by a public project, even if no land was taken. 2 Official Record, Constitutional Convention 1961, at 2580-81. In response to this suggestion, the Stafseth substitute, which had been drafted by municipal attorneys "for public utilities, for state agencies, cities, counties, highway departments and educational facilities," id. at 2582, sought, in part, to limit the claimants to those who had physical property taken.[17] Delegate Stafseth, the substitute’s sponsor, explained:

[The substitute] removes the 2 words referring to losses and damages. The reason for taking these out is that in the existing constitution the words "just compensation" has [sic] been construed by the supreme court as encompassing basically damages to the property taken. This is very important, because if you introduce these ... words into a constitutional provision, it will be like saying to the public that anybody that may be damaged, whether it is their property taken or just by the inconvenience of the new project, they would have a right to damages, and you can see that in the amendment the committee has just made they give the right to intervene to anyone whose property is not taken, and this is the very problem that the public agencies that take property are concerned with.

Id. at 2582-83.

Delegate Stafseth admitted that where a partial taking occurs, the owner receives the full diminution in value:

[T]his has been clearly established in our supreme court as to a definition of just compensation, that actually the way you evaluate this, you take the property at the time it is taken, how much it is worth that day and then you take and evaluate what the property is worth after you have taken away the part that the public agency shall use and then you compensate him for that amount so you leave the man whole.

Id. at 2592. The municipal substitute passed 61 to 56. Id. at 2602.

On April 25, 1962, a motion for reconsideration of adoption of the municipal substitute was offered. There was some indication that negotiations were continuing between the opposing camps, and that there was a need to determine whether the committee proposal or the municipal substitute would be the starting point. Id. at 2837. The reconsideration motion failed 50 to 66. Id. at 2839.

The conflict regarding eminent domain continued, and Delegate Madar suggested "settling" it by just using vague language similar to that in the U.S. Constitution:

Mr. Chairman and fellow delegates, I understand now that we have 6 or 7 amendments to go. And I just wonder whether it wouldn’t be a good idea for some of the attorneys here to just write up something that is in the federal constitution and let’s put it right in here. It will be enough.

Id. at 2842.

Two amendments to the municipal substitute failed. Id. at 2842, 2843. Neither had used the committee’s language regarding compensation for property that was "damaged." Delegate Habermehl then sought to amend the municipal substitute by allowing compensation whenever a landowner is "directly damaged." Id. at 2843. The amendment to the municipal substitute failed 42 to 44. Id. at 2845.

After some other amendments not related to damages failed, Delegate Danhof then suggested a substitute that read, "Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law." Id. at 2846. This amendment passed 78-17.[18]

On May 1, 1962, the delegates again considered the topic of eminent domain. An amendment was put forth to compensate takings and "direct damage." Id. at 3035-36. This amendment lost 43 to 58. Id. at 3039.[19] The Official Records index does not indicate how art 10, § 2, picked up its last sentence, which reads, "Compensation shall be determined in proceedings in a court of record."

The Address to the People set out the language of art 10, § 2, and then stated:

This is a revision of Sec. 1, Article XIII, of the present constitution which, in the judgment of the convention, is sufficient safeguard against taking of private property for public use. Further provisions relative to eminent domain and procedures appearing in Sections 2, 3, 4 and 5, Article XIII, of the present constitution have been eliminated.

This section clearly indicates that proper procedures for the acquisition of private property for public use are to be determined by the legislature and that compensation for such property must be determined in proceedings in a court of record.

Id. at 3403.

The constitutional convention debates do indicate that there was a clear concern about allowing those who had not suffered a partial taking to receive full recovery. But these same debates indicate that the delegates knew that Michigan construed its just compensation clause liberally and that where there was a partial taking, the landowners were entitled to full diminution-in-value damages.[20] There is nothing in the Address to the People that would suggest to the public that there was any attempt to change Michigan’s history of liberally construing the just-compensation clause.

[17] The municipal substitute also sought to limit the role of juries in making necessity determinations and in setting damages. 2 Official Record, Constitutional Convention 1961, at 2582-83.

[18] There is some indication that the amendment passed because many delegates were tired of dealing with the complex issues related to eminent domain and just wanted to go home. After Delegate Danhof introduced his substitute amendment, Delegate Hart sought agreement with the substitute so that the delegates could “go home for the evening.” Id. at 2846. This comment was met with applause; it was around 11 p.m. Id. Two other speakers indicated that they were tired of dealing with eminent domain and sought adoption of the Danhof substitute; Delegate Beaman indicated he was “numb” from “many hours of debate” and that this was the first amendment that he understood, and thus he favored it. Delegate Bonisteel said “ditto” to Delegate Beaman’s remarks. Id. Delegate Bledsoe chastised his fellow delegates for shirking their responsibilities:

I think it’s positively cowardly for us to run out on the people of Michigan whose property interests are being involved and who are looking to this convention for relief under our constitution. Is everybody sleepy, or do you want to go home and go to bed? I’ll even join you there but I’d like to meet you here in the morning and let’s carry on. This is a reprehensible state of affairs as far as I’m concerned.

2 Official Record, Constitutional Convention 1961, at 2847. The Danhof substitute amendment was adopted soon thereafter.

[19] Again there is some indication that the delegates were tired of dealing with eminent domain issues. For example, Delegate Mahinske stated, “We are taking this up when everybody is more interested in getting back to their own home than they are in protecting anybody else’s home.” 2 Official Record, Constitutional Convention 1961, at 3036.

[20] If Spiek were subjected to a common-understanding analysis, those who supported that decision would likely base a good portion of their argument on these debates.