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Lansing — The Michigan Department of Corrections unfairly slashed pay for residential housing unit officers by giving them a new job title but requiring them to continue doing the same work, attorneys argued Wednesday before the state Supreme Court.

The high court case stems from a 2012 move by the Corrections Department to abolish 2,415 “resident unit officer” positions and simultaneously create 2,415 new “corrections officer” posts. The department also cut 57 “medical unit officer” positions and created 57 new “medical officer” positions, bumping employees to the new jobs.

Democratic Attorney General Dana Nessel inherited the case when she took office on Jan. 1 and is continuing to defend the state against the union challenge. But her office on Wednesday backed off a broader argument seeking a precedent-setting decision by Michigan's highest court. 

The new corrections jobs paid less and cost affected employees a combined $8 million a year in wages, according to attorneys for officer William Henderson and the Michigan Corrections Organization union.

“This, despite the fact that the employees continued on April 2, 2012 to do precisely what they had done on April 1, 2012,” attorneys argued in the 2017 court filing. “Nothing changed but the position titles and the rates of pay.”

At issue is to what extent courts can review or reverse decisions by the Michigan Civil Service Commission, which has constitutional authority to oversee state employment and approved the job reclassifications. 

The Ingham County Circuit Court reversed the commission decision in 2016, ruling it was "arbitrary and capricious" and not justified by evidence. The Michigan Court of Appeals reverved the lower court, finding that judicial review of the commission's move is limited to whether it was "authorized by law." 

Assistant Attorney General Chris Braverman urged the seven justices to uphold the job reclassification and commission decision, saying it was "not arbitrary and capricious" and was instead "based on a thorough and extensive study."

But Braverman said the state is no longer arguing that the "authorized by law" standard in the Michigan Constitution precludes consideration of whether the decision was arbitrary and capricious, which could have a broad impact on future cases.

"The position we advanced in the supplemental briefing is no longer a position that the current attorney general and the solicitor general wish to advance to this court," Braverman said, backing off an argument made under Republican former Attorney General Bill Schuette. "This case can be decided without reaching that issue."

Justice Stephen Markman pressed Braverman on the new position, questioning if the Michigan Supreme Court would have taken up the case if there was "no hope or expectation or prospect that we might look to resolve a broader issue so that we could at least anticipate the next 100 cases that come here?"

Markman said he found several instances of "authorized by law" references in the Michigan Constitution. In each case, he said, the language appears to communicate "the more narrow concept of empowerment under the law," which would limit a broader judicial review of administrative decisions. 

Mary Ellen Gurewitz, an attorney representing corrections officers in the case, urged the justices to consider deliberations by the drafters of the Michigan Constitution, arguing they "clearly intended to have a broad review of administrative agency decisions."

In this case, she said, then-Michigan Department of Corrections Director Dan Heyns made clear he abolished the old jobs and created new ones for "cost containment," not because of a change in duties for the state employees.

"He said the Legislature had cut the appropriation, they had to cut costs, and therefore, they took the cut costs out of the salaries of the resident unit officers and the corrections medical unit officers," Gurewitz said. 

Chief Justice Bridget McCormick, a Democratic nominee recently named to the leadership post by colleagues on the Republican-led court, questioned whether limits on judicial review would apply in the hypothetical situation that a state agency decides to cut pay for all male workers.

"Can a court look at that record and say that seems problematic?" McCormick asked. "Or the court has to say, no, the agency has the power to make reclassification decisions, so we rubber stamp that all men no longer can make what they were making before?"

Such a move would likely violate constitutional guarantees of equal protection under the law, a determination judges would still have the ability to make, Braverman said.

The United Auto Workers union, Service Employees International Union Local 517M and the Michigan State Employees Association filed legal briefs backing the corrections officers.

While the state Constitution authorizes courts to determine if Civil Service decisions are “authorized by law,” that is a minimum standard that does not prohibit a judge from also considering whether the decision was “arbitrary and capricious,” said attorneys for the UAW, which represents roughly 17,000 state employees.

By reclassifying nearly 2,500 corrections officers to positions with lower pay, the state “effectively” demoted them, said UAW attorneys.

joosting@detroitnews.com

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