Supreme Court Hears Arguments On Adopt-And-Amend Tactic
July 23, 2019
Whether Republican lawmakers could legally scale back the minimum wage and paid sick leave citizens initiatives in lame duck is now in the Michigan Supreme Court’s hands.
All seven justices heard arguments Wednesday on the Legislature’s request to issue an advisory opinion on whether their lame duck strategy to “adopt and amend” was constitutional. The justices haven’t indicated that they will offer an opinion, only that they would hear oral arguments.
At issue is the Legislature’s approval of two ballot proposals in September, which became Public Act 368 and PA 369, that would have brought increased minimum wage to $12 by 2022, and have allowed workers to earn one hour of paid sick time for every 30 hours worked. The Legislature softened both during lame duck session, a decision that was supported by the business coalition of Small Business for a Better Michigan led by the Small Business Association of Michigan.
The court asked Democrat Attorney General Dana Nessel’s office to argue both sides. Deputy Solicitor General Eric Restuccia said the court doesn’t have jurisdiction to issue an opinion after an effective date because the audience for such an opinion is the Legislature or executive, not other courts.
Solicitor General Fadwa Hammoud argued the opposite, calling the action “an insult to our Constitution” and “a slap in the face” to Michigan residents. She said the Legislature thwarted the will of the people and argued lawmakers’ actions “would create a permanent escape route” for the Legislature to go around residents’ initiative power.
Michigan’s constitution grants citizens the right to initiate legislation by petition drives and gives the Legislature 40 days to approve measures or let them go to the ballot, but the Constitution is silent on whether lawmakers can adopt and amend an initiative in the same two-year session.
Attorney John Bursch, who represented the House and Senate, encouraged the court to issue an advisory opinion, noting there’s nothing in the constitution prohibiting adopt-and-amend.
“If the Legislature is going to upend what the people actually want, then they are not going to be in the majority of the Legislature very long,” he argued.
While the justices were engaged in the arguments and often interrupted with questions, it was Justice Richard Bernstein, a Democrat, who got to the heart of the matter when he asked Restuccia if the Legislature “thwarted the will of the people.”
“The unambiguous reading (of the Constitution) is that the people have placed legislatively enacted laws, initiated by petition or not, on the same plane,” Restuccia replied. “They’re subject to amendment within the same session.”
Restuccia acknowledged, however, that the tactic could have been used for “cynical” reasons, but he reasoned that voters’ remedy would be at the ballot box.
“If you’re concerned, people should throw the rascals out,” he said.
Bernstein also asked how to stop the issue from coming again. Restuccia said it would be litigation.
Chief Justice Bridget McCormack, a Democratic nominee, questioned what, if anything, could stop a Legislature if their stated goal was to undermine the will of the people, but she noted that there were scenarios that allowed a “friendly” amendment to a law, such as fixing a drafting error.
Restuccia noted that the court’s opinion is advisory and therefore, not binding.
Justice Stephen Markman pushed back, saying while the opinion isn’t binding, the court would likely take it into account and “it becomes a part of the judicial power the same way as any other case we decide.”
Bursch, a former solicitor general, also argued that the courts should consider only whether the Legislature acted within the constraints of the Constitution, and he warned against an unlikely scenario that had every House and Senate member testifying in court to explain their individual motivation for their vote.
“It’s impossible to unscramble the egg once that happened,” he said.
Civil rights attorney Samuel Bagenstos, who represented Democratic legislators opposing adopt-and-amend, agreed the court doesn’t have to consider the Legislature’s intent. He noted, however, that the tactic simply allows the “Legislature to kill initiatives it doesn’t like.”
Two groups, including One Fair Wage, generated the signatures needed through the citizens’ initiative process to put the issues before lawmakers. If the Legislature didn’t approve the measures, they were to appear on the November ballot for voters to decided and would have been more difficult to amend if voter-approved.
Danielle Atkinson, chair of MI Time to Care who led the ballot effort to amend paid sick time laws, said after the hearing that the group is keeping its options open, including efforts to put the issue back on the ballot, working with the Legislature or legal options.
“I hope that they find adopt and amend unconstitutional, and that we can have a paid sick time law and a minimum wage law that reflect the will of the people,” said Atkinson, founding director of Mothering Justice.