Michigan Supreme Court to hear sick leave, minimum wage case

Michigan's Supreme Court
Michigan Supreme Court, March 22, 2019 | Susan J. Demas

The Michigan Supreme Court has agreed to hear oral arguments in a case that could determine whether Republican lawmakers violated the state Constitution in adopting watered-down sick leave and minimum wage laws last fall as part of an attempt to pre-empt citizen petitions on the issues.

Michigan’s highest court agreed to hear the case on July 17 as part of a court order issued Wednesday. The order comes after the state House and Senate previously asked the court to review the issue, as Democrats requested an opinion from Attorney General Dana Nessel on whether the laws are constitutional.

Attorney General Dana Nessel
Dana Nessel

Nessel will not issue any such opinion at this point, according to spokeswoman Kelly Rossman-McKinney.

The Supreme Court has instead asked the attorney general’s office to submit legal briefs arguing both sides of the case.

“Although unusual, the ask is not unprecedented,” Rossman-McKinney said. “Twice in the last 10 years, the Michigan Supreme Court has ordered the Department of Attorney General to brief both sides of an issue: in 2015 on the funding of private schools and in 2011 on taxing pensions.”

Organizers in favor of last year’s two ballot proposals gathered more than 370,000 signatures in support of each of them — far more than the 252,523 required to put the measures to a statewide vote.

But GOP lawmakers opted to adopt them in September instead. The Constitution allows the Legislature to do so within 40 days of when the petition is received, which prevented the measures from appearing on the November general election ballot.

Then after the election, Republicans passed new bills that significantly amended the minimum wage and paid sick leave measures they had just adopted. Former Gov. Rick Snyder signed the new bills into law during the Lame Duck session.

Under the new laws, Michigan’s minimum wage rose last Friday to $9.45 an hour. New requirements for employers offering paid sick leave also took effect last week. The minimum wage will rise to $12 an hour by 2030 — eight years slower than the ballot measure had scheduled. The initial sick leave ballot proposal mandated 72 hours of paid sick leave, while the current law requires 40 hours.

The court will consider many issues: whether it will issue an advisory opinion on the laws, whether the Michigan Constitution stops the Legislature from adopting and amending a ballot proposal in the same legislative session, and whether the laws violate a section of the Constitution that outlines the Legislature’s authority to adopt petitions.

The Michigan Supreme Court has asked Nessel’s office to submit a brief in support of the enacted legislation by May 15, and the opposing brief by June 19.

Sam Bagenstos
Law professor Sam Bagenstos

University of Michigan Law Professor Sam Bagenstos, who unsuccessfully ran for the Supreme Court as a Democrat last year, said he thinks the court has the option to decline to issue its own opinion, but said it’s more likely it will offer one.

“Once the court decides the issue, that’s really going to decide the issue for everybody,” Bagenstos said.

Gov. Gretchen Whitmer told reporters outside of a Michigan State Trooper graduation ceremony Wednesday that she hasn’t had time to review the order, but said, “As we know, Lame Duck sessions move fast and furious; mistakes get made.” She added that she will “take a closer look at it and give a more thoughtful answer the next time I see it.”

State Senate Majority Leader Mike Shirkey (R-Clarklake) “is eager to have the process move forward” according to spokeswoman Amber McCann. “He wishes the uncertainty would be removed sooner, but he is confident in the eventual outcome and will remain patient.”

Former Lt. Gov. Brian Calley, now-president of the Small Business Association of Michigan, said he’s confident that the two currently passed laws are constitutional.

He said in a statement that “the Supreme Court has the opportunity to improve the jobs climate by removing any uncertainty” and that the pending oral argument “would seemingly rule out the possibility of an intervening AG opinion in the meantime, which Michigan’s small businesses will greatly appreciate.”

The original sick leave ballot initiative was spearheaded by a ballot committee called MI Time to Care.

Protesters in favor of the original ballot initiatives
Members of Indivisible Huron Valley protesting cuts to minimum wage and sick leave. Michigan Capitol, Dec. 4, 2018 | Ken Coleman

Danielle Atkinson, the committee’s co-chair, criticized the GOP-controlled Legislature in a statement.

“Paid sick time has wide support from the people of Michigan, so much so that hundreds of thousands of people signed a petition to enact the law via the ballot,” Atkinson said.

“We believe the scheme was a clear violation of Michigan’s Constitution as the legislature is only afforded three options when a ballot measure has turned in a sufficient number of signatures: send the proposal to the ballot, pass the proposal, or send the proposal with an alternative to the ballot,” she said. “However, the legislature chose to create an unconstitutional fourth option by passing the law in September with the intention of gutting it in December before it ever took effect.”


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