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Supremes Deny Legislature’s Request For Immediate Opinion On Adopt/Amend

January 7, 2020

The Michigan Supreme Court ruled 4-3 Dec. 18 that it will not issue an advisory opinion on the fate of the minimum wage and paid sick time laws.

Instead, it will wait for the matter to go through the regular appeals system before it decides whether the Legislature abused its power by adopting two citizens’ initiatives and then amending them in the same session.

The court said it was not persuaded that offering an opinion “would be an appropriate exercise of the court’s discretion.”

At issue was the Legislature’s approval of two ballot proposals, which became Public Acts 368 and 369 in September 2018, 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.

Justice Elizabeth Clement wrote that she believes the court lacks jurisdiction under the Constitution to issue such an opinion after the effective date of the legislation.

Justice Stephen Markman, who dissented, disagreed, saying the 1963 Constitution doesn’t contain a time limitation, but instead provides that the Legislature must undertake its request “after (the legislation at issue) has been enacted into law but before its effective date.”

Deputy Solicitor General B. Eric Restuccia argued during the July 17 arguments that the court doesn’t have jurisdiction 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.

Restuccia was pitted against his boss when the Supreme Court asked the Attorney General’s office to argue both sides.

“I believe that all of these sources of meaning — the text of the Constitution, the circumstances leading to its adoption, and the constitutional convention proceedings . . . indicate that this Court lacks jurisdiction to issue an advisory opinion after the effective date of the legislation being reviewed,” Clement wrote.

Clement acknowledges, however, that the Court has issued advisory opinions after the effective date on “several occasions,” but she finds “this past practice unpersuasive.”

Clement noted that former Attorney General Bill Schuette opined in 2018 that the Legislature could enact amendments to an initiated law during the same session — referred to as “adopt and amend” — and that his opinion superseded former Attorney General Frank Kelley’s 1964 differing opinion.

Chief Justice Bridget McCormack joined Clement’s statement.

Justice Megan Cavanagh found Clement’s view “compelling,” but said the Legislature’s request for an advisory opinion didn’t come early enough in advance of the effective date. She suggested the Legislature should have made its request “as soon as the laws were enacted,” which was Dec. 13, 2018. The requests came the following February.

“I believe the diminished practical value of an opinion now cautions against exercise of the Court’s discretion to issue an opinion,” Cavanagh said.

Justice Richard Bernstein joined her statement.

Markman would have issued an opinion, saying it was an important question of law and the Court “possess the authority — and, in my judgment, the reasonable obligation — to answer the question before it.” He said the Court’s needless delay in providing an answer is “both paralyzing the legal process and confounding employers and employees in search of the guidance that might have been afforded them.”

In a footnote, Markman noted the importance of the question was “exemplified by the fact that in the current divisive political climate in which we find our state and nation, the request for an advisory opinion is supported by members of both major political parties” as well as proponents and opponents of the initiatives.

However, Cavanagh said that statement “further cautions against, rather than in favor of” an opinion from the Supreme Court “absent an actual case or controversy.”

Markman noted: “While I respectfully differ with the Court in its decision not to issue the requested advisory opinion, I find far more troubling the Court’s utter lack of urgency in communicating a response to the Legislature and to the people . . .”

Justices Brian Zahra and David Viviano also dissented.

The Michigan Chamber of Commerce called the court’s decision “disappointing.”

“Unfortunately, Michigan’s employers and employees did not get the answers or certainty they were looking for from the court,” Jim Holcomb, executive vice president of the Michigan Chamber, said in a statement.

Wendy Block, vice president of business advocacy for the chamber, added: “Although we respect the court’s autonomy and ability to decline to issue an advisory opinion in this matter, the court has opened the door to a much longer legal process that is likely to be fraught with unnecessary confusion, cost and political rhetoric.”

The Michigan Restaurant & Lodging Association (MRLA) sided with the Court, saying the ruling seems to “bolster our long-held position that the Michigan Legislature acted within its constitutional authority.”

“No ruling is a win for economic stability, opportunity and future job growth in the hospitality industry,” said MRLA president and CEO Justin Winslow.

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