McLellan: Legislature OK In Amending Proposals; Issue Taken To Supremes
February 26, 2019
The Legislature was within its right to amend two citizen-initiated laws during the same legislative session in which they were adopted, the chair of the Michigan Law Revision Commission told MIRS Wednesday.
Richard McLellan of McLellan Law Offices, who many consider a Michigan constitutional expert, said what lawmakers did with the paid sick leave and minimum wage increase last year was, in fact, constitutional.
“You need to answer these questions: was this a citizen-initiated law for which the petitioners collected a sufficient number of valid signatures? [and] Did the Legislature adopt it within the required 40 days? Are those the preliminary facts?” McLellan asked. “There was also the argument over whether the Legislature could amend it in the same legislative session, but it seems to have been determined that it can. So, if the petitions were certified and the Legislature properly adopted the law, then the legislature has the right to amend it.”
McLellan was asked his thoughts on the same day the House and Senate passed along their own formal requests to the state Supreme Court for their advisory opinion on the matter.
It has been suggested that the constitution doesn’t allow for such amending, causing Democratic lawmakers to ask Attorney General Dana Nessel her opinion on the matter.
The Senate acted first, adopting by a voice vote and with no debate SR 16, a resolution asking the Michigan Supreme Court opinion on the Legislature’s ability to amend the paid sick leave and minimum wage citizen initiatives during lame duck.
SR 16 was sponsored by Senate Majority Floor Leader Peter MacGregor (R-Rockford).
“It’s no mystery that, regardless of the path you take, every step — one side or the other — will be disappointed and appeal,” Senate Majority Leader Mike Shirkey (R-Clarklake) told reporters after Wednesday’s session. “So, I say why leave the state in a condition of uncertainty? Let’s just take it all the way to the Supreme Court, which it is in our prerogative to do.
“I have no clue as to how the Supreme Court will rule,” Shirkey continued. “All I know is it’s going to get there eventually, so why wait?”
A reporter asked Shirkey if the Legislature was just asking the question or would it actively defend its position in court.
“The resolution just asks the question,” Shirkey said.
In response to further reporter questions, Shirkey said the Supreme Court could potentially decide not to issue an opinion.
“They may choose not to take it up altogether,” Shirkey said. “Which puts us right back where we are today. So, there’s no harm, no foul.”
Chang told reporters the Republicans had the right to ask the court for its opinion.
“It’s well within the Legislature’s right to ask for a Supreme Court decision,” Chang said. “What this is about for me is making sure we’re giving workers the paid sick time they deserve and making sure they have a living wage.”
MIRS asked Chang if the Senate Democrats would have voted for SR 16 if there had been a rollcall vote.
“It was on a voice vote and we didn’t call for a rollcall vote,” Chang said. “I think that’s a reflection of where we’re at.”
Over in the House, Minority Leader Christine Greig (D-Farmington Hills) said she wanted HR 25 clarified to put the question of “adopt and amend” in front of the Supreme Court, but she didn’t want taxpayer’s money spent to argue a position since “hundreds of thousands” of Michiganders had signed the minimum wage and paid sick petitions.
“This is really vague language, so I really want to get at the intent of this clause in the resolution. Is the intent of the Speaker to take all the steps necessary to get these questions before the court or to actually spend resources on taking a position on this issue?” she told the House Government Operations Committee.
The committee was discussing Rep. Triston Cole’s (R-Mancelona) resolution asking the Supreme Court to rule on the question of whether the Legislature can adopt a petition drive and amend it later in the same session.
House Republican General Counsel Hassan Beydoun said the intent was both, and contended that the Speaker of the House already has the right under the constitution to take a position on the question before the court, if indeed the Supreme Court agrees to take the issue up.
Greig said if the language was clarified to eliminate taking a position, she would favor sending the issue to the Supreme Court.
Rep. Yousef Rabhi (D-Ann Arbor) offered two amendments to the resolution, one stating this is the first time the Legislature has amended an adopted initiative since the constitution was written in 1963 and the other noting that then-Attorney General Frank Kelley ruled against it in 1964. Both amendments failed in party-line votes.
“The 99th Legislature addressed the mistake-ridden minimum wage and paid sick leave ballot initiative because our servers, bartenders, baristas, business owners and other folks across this state brought this to us,” Cole told the committee. “They did not like the fact they would be forced to take a lower wage and place further restrictions on our business community. By asking for this opinion it will put to rest the political gamesmanship being played.”
Rabhi responded: “I’m glad my colleague brought up the gamesmanship because a lot of what happened around these ballot initiatives was all gamesmanship. I think it’s mind-blowing that the Legislature adopted these ballot initiatives only with the intent of amending them later in the same Legislative session.”
Greig and Rabhi passed when the committee voted Wednesday morning 3-0 to send the resolution to the floor.
HR 25 was approved later in the day in a voice vote with no debate.