Michigan Supreme Court Hears Arguments on Adopt-and-Amend
December 12, 2023
Two attorneys told the Michigan Supreme Court that the 2018 Republican-led Legislature’s adopt-and-amend tactic on the minimum wage increase and paid sick leave initiative was unconstitutional.
Deputy Solicitor General Ann Sherman, who represented the Attorney General, said adopt and amend circumvents the people’s power to propose law.
“If permitted, then hypothetically, every Legislature could do this with every initiative,” she said. “… It’s offensive to the Constitution.”
Mark Brewer, who represents the plaintiffs in Mothering Justice v. Attorney General, argued the source of all political power is the people, and for the first time in the 105 years the people have enjoyed a “constitutional right to create laws, the Legislature usurped” that right by gutting the two initiatives.
“Essentially, the right to initiatives in this state will end if this adopt-and-amend scheme is allowed,” he said. “The Legislature is the natural enemy of the initiative process. That’s why the initiative process was adopted – to bypass an often-hostile Legislature.
“If the power to adopt and amend is placed in the hands of the Legislature they’ll use that to eviscerate the right of initiative.”
However, Deputy Solicitor General Eric Restuccia, who represented the state, disagreed, saying the state Constitution doesn’t limit the Legislature’s authority to adopt and amend as they did with Public Act 368 and Public Act 369.
“This idea that somehow the people have been cut out of the process is wrong,” he countered. “The framework has been given to us by the Constitution. We’re bound to its language.”
Justice Richard Bernstein questioned whether citizens should be fearful that the Legislature will usurp their will, asking Restuccia if his side wins “would that be the end of the people’s ability to have referendums.”
Restuccia disagreed, saying the Legislature has an incentive of a future “three-fourths protection” if a proposal is adopted by the people.
Restuccia reiterated that the Legislature can adopt-and-amend, citing as an example the Court of Claims Act in 2013 which was given immediate effect in November 2013 and amended with immediate effect the following December.
“Questioning the motives of the Legislature is beyond the purview of this court,” he noted.
Justices Brian Zahra and David Viviano questioned Sherman if she believed the drafters would have specifically said that adopt and amend can’t occur.
“I think that tells the people how they have to say what they want to say,” she replied, noting that the constitution “doesn’t tie” a future Legislature’s hands from amending.
Justice Elizabeth Welch noted the petition language had specific dates, saying it is difficult to ignore that the court’s opinion could presumably leave “every employer in Michigan … out of compliance with no notice.”
In 2018, activists circulated a citizens initiative on a $12-an-hour minimum wage proposal and a paid sick time petition, but neither petition saw a statewide vote as the Legislature adopted the initiative and then moved after Election Day to change the laws with a simple majority.
In 2022, Court of Claims Judge Douglas Shapiro held the adopt-and-amend conduct was unconstitutional.
The Michigan Court of Appeals disagreed, saying the Legislature is “free to amend laws adopted through the initiative process during the same legislative session.”
This is separate from a recent deadlock at the Board of State Canvassers that blocked One Fair Wage’s minimum wage petition. Raise the Wage MI has since filed a complaint in the Supreme Court.
Meanwhile, dozens of restaurant workers, advocates and elected officials, including Reps. Kara Hope (D-Lansing) and Helena Scott (D-Detroit), gathered at the Hall of Justice for Thursday’s arguments.
“We are thrilled with the Michigan Supreme Court’s action to hear arguments for what millions of workers, including restaurant workers, in the state need: a minimum wage increase to over $13 per hour,” said Dr. Alicia Renee Farris, chairperson of the Michigan One Fair Wage Ballot Steering Committee and chief operations officer of the Restaurant Opportunities Centers United.
“We were wrongly circumvented by a Legislature that was supposed to protect us and prioritize the welfare of workers, and instead blocked a ballot initiative to raise Michigan’s minimum wage by 2022, including for tipped workers, with annual increases tied to inflation, and to extend paid sick days to all Michigan workers,” she added.
SBAM has been actively involved in the adopt-and-amend case being heard by the Michigan Supreme Court. On yesterday’s Small Business Briefing President & CEO Brian Calley was joined by Zach Gorchow of Gongwer for an in-depth analysis of the case so far. You can watch their conversation here: The Small Business Briefing | December 11, 2023
Article courtesy MIRS News for SBAM’s Lansing Watchdog newsletter