Attorneys spar over Legislature’s ‘adopt and amend’ move on minimum wage, paid sick leave initiatives

Michigan Supreme Court | Nick Manes

For almost two hours on Wednesday, competing factions made their cases to the Michigan Supreme Court on the constitutionality of Legislature “adopting and amending” citizen-led ballot initiatives. 

Michigan Capitol, March 22, 2019 | Susan J. Demas

At issue was the GOP-led Legislature’s 2018 decision to buck 50 years of Michigan legal precedent, which had held that lawmakers can’t adopt a citizen-driven ballot question and then change it during the same legislative session. 

Last September, Republicans in the House and Senate opted to exercise their right to adopt ballot proposals that would have increased the minimum to $12 per hour by 2022 and expanded employer-paid sick time, both of which faced opposition from the state’s main business lobbying groups. 

Then, during last year’s chaotic Lame Duck session after the 2018 election, the Legislature passed watered-down versions of the measures, which will result in a minimum wage of $12 per hour by 2030, as opposed to 2022. The initial sick leave ballot proposal mandated 72 hours of paid sick leave, while the current law requires 40 hours.

Those bills were signed by Republican former Gov. Rick Snyder just before he left office due to term limits. 

Snyder signs neutered minimum wage, sick time bills

Several supporters of the ballot proposals — known as One Fair Wage and MI Time To Care — were present in the packed Supreme Court courtroom in downtown Lansing on Wednesday.

Solicitor General Fadwa Hammoud, who manages the state’s litigation and argued against the adopt-and-amend strategy, sought to portray to the justices the dire consequences if they let the maneuver stand. 

Solicitor General Fadwa Hammoud at the Michigan Supreme Court | Nick Manes

“This would create a permanent escape route for the Legislature [and] for the people to never get their voice through initiative power on to a ballot if adopt and amend is upheld,” Hammoud said on Wednesday. 

Chief Justice Bridget Mary McCormack seemed to acknowledge that there could be long-term consequences if the court doesn’t offer some sort of clarity on the matter. 

“It comes to us in a hyper partisan package that sets up in one direction, but obviously it’s politically neutral,” McCormack said of the case before the justices. “The weapon would be available to any … party that can control two branches of government.”

Most parties at Wednesday’s oral arguments urged the court to issue an advisory opinion, although the justices did not indicate whether or not that would happen. There was broad agreement that the lack of an opinion by the high court would likely result in litigation and that even with an opinion, there would still be the possibility of litigation by the losing side. 

John Bursch, an attorney for the GOP Legislature and a state solicitor general under former Attorney General Bill Schuette, told reporters after the arguments that it would be “unfortunate” if the court does not issue an advisory opinion on the adopt-and-amend tactic. 

Attorney John Bursch at the Michigan Supreme Court | Nick Manes

“You really didn’t hear many voices in the courtroom today urging that the court shouldn’t issue a decision at all,” Bursch said. 

“Because the natural outcome of that is going to be massive confusion for 200,000 Michigan employers, for 4 million Michigan employees. There’s going to be rampant litigation, and that’s going to leave our state really in a much worse-off position than having them answer it either way. I think clarity is always better.”

The office of Attorney General Dana Nessel, who attended Wednesday’s arguments but did not speak or address reporters, had to play something of an interesting, albeit, not uncommon role. Because the attorney general’s office represents the state in legal matters, Hammoud and her top deputy had to argue opposing sides of the case. 

Deputy Solicitor General Eric Restuccia, who argued that the Legislature acted within the bounds of the Constitution, however, said he does not believe the Supreme Court has the authority to issue an opinion because the laws have already been passed and taken effect. 

Voices thwarted?

Last year, organizers of the minimum wage and paid sick time ballot drives far exceeded the 252,523 signatures needed to put the issues on the ballot, gathering more than 370,000. 

Michigan Democrats were confident last year that even with the Republican-led Legislature choosing to adopt the measures the petitions would still become law because of a 50-year old opinion authored by Democratic former Attorney General Frank Kelley that lawmakers can’t adopt and amend in the same session. 

Democrats’ strategy on minimum wage and sick time initiatives backfires

Republicans last year decided to test those waters. 

Sam Bagenstos, a University of Michigan law professor who unsuccessfully ran for Supreme Court last year, served as an attorney for Democratic legislators. He told the justices on Wednesday that without an opinion declaring the maneuver unconstitutional, future legislative bodies will only be emboldened to further push the boundaries. 

Sam Bagenstos
Law professor Sam Bagenstos

“The settled practice for over 50 years was when people get enough signatures, either vote it into law and let it be a real law, or let the people decide,” Bagenstos said. “Now the genie is out of the bottle, if this court approves of what the Legislature did in the last session, then there’s no reason to believe this will be the last time we see this.”

Early in the proceedings, Justice Richard Bernstein asked Restuccia, the deputy solicitor general as to whether the will of Michigan voters was “thwarted” by the legislative strategy. 

Restuccia noted that the question gets to “the merits” of the case and said that any reading of Article 2, Section 9 of Michigan’s 1963 Constitution — which deals with ballot initiatives — unequivocally grants the Legislature the power to amend ballot proposals during the same legislative session because there’s no language to suggest otherwise. 

He likened it to the Legislature passing a new tax law that has an adverse impact and requires fast action to amend. 

“The unambiguous reading is that the people have placed legislatively-enacted laws, whether by petition or not. … They are subject to amendment within the same session,”Restuccia said.

Michigan Supreme Court | Nick Manes

Bursch argued that the justices can’t know the intent of the legislators who voted to adopt and amend and, therefore, need to rule solely on the constitutional grounds, which offers no explicit guidance. 

Restuccia and Bursch had a simple message for voters who feel that lawmakers act against their will.

“The question becomes, what if there is a cynical manipulation? I’m not saying it happened here, but I think the Constitution has a remedy then, which is either you can undo it through a referendum or the ballot box,” Restuccia said, adding later that citizens can “vote the rascals out.” 

On the opposing side, Mark Brewer, former chair of the Michigan Democratic Party and attorney for the sponsors of the two ballot initiatives, said his clients would be in support of the Supreme Court ordering that the laws passed by the Legislature go to the ballot and give citizens the opportunity to vote on them. 

Danielle Atkinson

Where the matter goes from here remains unclear. There’s no timeline known for when the court might choose whether or not to issue an opinion.

Speaking with reporters following the arguments, MI Time to Care Chair Danielle Atkinson said the coalition is leaving all options on the table, including another ballot initiative, legislation or a possible lawsuit. 

“Our coalition continues to stay in contact and we will make sure that Michigan residents have the ability to take paid sick time, whatever that may be,” Atkinson said. “We need to plan right [and] as soon as we have a decision, we will know what our next steps are.”

Michigan Supreme Court hearing, July 17, 2019 | Nick Manes

Alicia Renee Farris, state director of Restaurant Opportunities Center of Michigan and chair of the Michigan One Fair Wage steering committee reiterated that the group believes the Legislature’s Lame Duck maneuver was unconstitutional.

“We are hopeful the Michigan Supreme Court will reach the same conclusion,” she said. “The Court was very knowledgeable regarding this topic, and every member was active and engaged. We hope the Court sides with the more than 400,000 voters across our state who support increasing the minimum wage to $12 for all workers.”

Nick Manes
Nick Manes is a former Michigan Advance reporter, covering West Michigan, business and labor, health care and the safety net. He previously spent six years as a reporter at MiBiz covering commercial real estate, economic development and all manner of public policy at the local and state levels.

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