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Adopt-And-Amend Now In Appeals Panel’s Hands

December 20, 2022

Courtesy MIRS News, for SBAM’s Lansing Watchdog e-newsletter

Whether a legislatively altered paid sick leave proposal and minimum wage increase stands is in the hands of a three-judge appellate panel.

The judges heard arguments Tuesday on the constitutionality of the Legislature’s tactic of adopting and then amending two citizens initiatives to prevent the measures from going on the ballot.

The parties asked the panel – Court of Appeals Judges Michael J. Kelly, Christopher M. Murray and Michael J. Riordan – to issue a published opinion with immediate effect by Feb. 1 as the lower court set a Feb. 19 deadline, which the appellate panel isn’t bound to follow.

Back in 2018, the Legislature didn’t want voters to get a crack at an initiated law that would have set the minimum wage at $12 an hour by 2022. It eliminated the smaller, tipped wage for restaurant workers and put them at a $12 minimum wage, as well, which arguably would eliminate Michigan’s tipped culture for restaurant workers.

The second citizens initiative would have mandated that businesses provide at least 40 hours of paid sick time to employees every year. Both polled well and both were opposed by the business community.

Instead of letting them both go before voters, the Republican-led Legislature adopted them first and then changed both laws with a simple majority in both sessions.

Court of Claims Judge Douglas Shapiro concluded the action thwarted the people’s intent, and he voided Public Acts 368 and Public Act 369 of 2018 and put the initial legislation, PA 337 and PA 338, into effect.

Deputy Solicitor General B. Eric Restuccia told the court the state Constitution is unambiguous, and it does not stop the Legislature from amending a ballot initiative it enacts. The Constitution does, however, say the Legislature has to wait until the next session to amend laws subjected to referendum, he argued.

Murray asked Restuccia what he thought about the perception the Legislature “basically pulled a fast one” by its adopt and amend conduct.

Restuccia replied that a prior court opinion allows the Legislature “to step into that space” and pass laws during a referendum. 

John Bursch, representing the Legislature, pushed back on the question, arguing there was no guarantee that voters would have passed the measure.

An initiative petition, Bursch argued, only demonstrates that 8% of the people wish to have the question on the ballot.

“It doesn’t show that the people, even the people who signed the petition, would have wanted that enacted into law,” he said. “And I think it’s significant that Gov. Gretchen Whitmer, even today, within the last month, has said that this law should be amended because it would be disastrous for the restaurant industry and other aspects of the economy.”

“Well, we don’t need to get into the political aspects of things,” Riordan countered.

Bursch responded: “I don’t think it’s right to say anything was thwarted here. The Legislature enacted the power it had.”

Residents have two options, Restuccia said. They may “re-enact the measures by another initiative or at the same time, at the same election, may elect other members of the Legislature, throw the bums out kind of concept.”

While Restuccia argued the lower court’s opinion should be reversed, Deputy Solicitor General Ann Sherman argued the court should honor the people’s intention, which is that “adopt and amend is prohibited.”

Murray questioned Sherman as to why the everyday person’s logical conclusion isn’t that the Constitution says the Legislature can adopt and amend for initiative petitions, but not referendums. 

Sherman said other language shows the people said the Legislature, to whom the petition is going to be presented, could take its version and put it up against the people’s.

Attorney Mark Brewer, who represents the plaintiffs including Mothering Justice, said the case is not about Article 4 of the Constitution, but Article 2, which the Michigan Supreme Court has said is “a reservation of legislative power back to the people.”

Brewer questioned what the limits are if the Legislature is allowed to adopt and amend as it did.

“I think the right to initiative will essentially disappear in this state because any Legislature in cahoots with any governor on any initiative they don’t like can simply adopt it, and then gut it at their convenience during the same session,” he said. “There’s no limiting authority. … We ask you to declare this weapon of adopt and amend unconstitutional for everybody. … They are to stick to the normal course as it was understood for 105 years, before 2018,” Brewer added.

Meanwhile, ahead of Tuesday’s arguments, plaintiffs from Mothering Justice, Restaurant Opportunities Center of Michigan and Time to Care held a press conference calling for the original petition language to be affirmed.

At the conclusion of arguments, John Sellek, spokesperson for Save Michigan Restaurants, said polling shows that Michigan’s servers and bartenders “overwhelmingly feel the Legislature got it right in 2018 when it saved the tip credit system, which allows tipped workers to earn far more than minimum wage in support of their families.”

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