Court considers legality of weaker wage, sick time laws
LANSING — Michigan Republicans’ maneuver to weaken voter-proposed laws to raise the minimum wage and require paid sick leave was “outright unconstitutional,” a top appellate lawyer said Wednesday while urging the state Supreme Court to stand as a “last line of defense” against the unprecedented tactic.
An attorney for the GOP-led House and Senate countered that nothing in the state constitution prevents the Legislature from amending a citizen-initiated law at any time, including during the same legislative session.
At issue is “adopt and amend,” a strategy that majority Republicans used last year. To prevent minimum wage and sick time ballot drives from going to the electorate in November, after which they would have been much harder to change if voters had passed them, GOP legislators approved them in September so that they could be made more business-friendly after the election with simple majority votes and the signature of the outgoing Republican governor, Rick Snyder.
Solicitor General Fadwa Hammoud, who is with Democratic Attorney General Dana Nessel’s office, said the maneuver killed voters’ right to petition lawmakers, thwarting their will.
“This was outright unconstitutional. It was a slap in the face to the people that reserved their rights to themselves and it basically nullified that provision of our constitution in every way,” said Hammoud.
The high court is considering legislators’ request for a rare advisory opinion on the constitutionality of the tactic, which could potentially avoid a lengthy legal fight.
Under the Michigan Constitution, a group can collect hundreds of thousands of voter signatures to qualify an initiated bill for a November ballot. Legislators then have a 40-day window in which they can enact it, reject it — putting it to a statewide vote — or propose an alternative to appear alongside the measure on the ballot.
One of the two new laws at stake gradually increases the state’s $9.45 minimum wage to $12.05 an hour by 2030, instead of to $12 by 2022, as was initially enacted. The other law exempts employers with fewer than 50 employees from having to provide paid sick days, a change that is estimated to leave up to 1 million employees without the benefit — unlike what was proposed by the initiative. It also limits the amount of annual mandatory leave at larger employers to 40 hours, instead of 72 hours.
Attorney John Bursch, representing the House and Senate, said the Legislature is free to amend a citizen-initiated law at any time, countering justices’ concerns about allowing lawmakers such an “escape hatch,” particularly because they waited until after the election to scale back the proposals.
“Nowhere in the constitution does it draw that line anywhere that would be a barrier to an amendment at any time,” Bursch said. “You would have to create one out of whole cloth.”
A host of groups filed briefs in the case, including business, labor and civil rights organizations. A brief submitted on Democratic Gov. Gretchen Whitmer’s behalf called the Legislature’s strategy an “unprecedented power grab, plain and simple, and an affront to the rule of law.”
At the court’s request, a separate lawyer in Nessel’s office argued Wednesday that the adopt-and-amend step is legal. Deputy Solicitor General Eric Restuccia said voters who do not like it had a chance to gather signatures for a referendum on the amended laws, or they can elect new legislators in the future. He also contended that it is too late for justices to issue an advisory opinion because the laws took effect in March.
Several justices seemed eager, however, to rule now rather than wait for the controversy to go through regular litigation. On the underlying merits, Chief Justice Bridget McCormack expressed concern with courts having to decide whether lawmakers intended to thwart or facilitate a ballot initiative.
Sam Bagenstos, an attorney for Democratic legislators, responded “the court shouldn’t have to figure that out. … The settled practice of the Legislature 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. 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’ll see this.”
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