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Michigan Supremes to hear arguments over GOP minimum wage, sick leave moves

Jonathan Oosting
The Detroit News
An exterior of the Michigan Hall of Justice, also known as the Michigan Supreme Court building in Lansing, June 24, 2015.

Lansing — The Michigan Supreme Court on Wednesday agreed to hear oral arguments over whether the Republican-led Legislature had the constitutional authority to adopt and then scale back minimum wage and paid sick leave initiatives in the same session.

The Michigan House and Senate asked the state’s highest court for an advisory opinion on the unprecedented maneuver amid a separate review by Attorney General Dana Nessel and the looming threat of lawsuits by petition drive organizers who had sought to put the measures on last fall's ballot.

While it remains unclear whether the justices will provide that opinion, the order issued Wednesday directs interested parties to file legal briefs on the issue ahead of oral arguments scheduled for July 17. And Nessel's office said she will "refrain from opining" on the laws until the Supreme Court review is complete.

The controversial minimum wage and paid sick leave laws, changed in December and signed by then-Gov. Rick Snyder, took effect last week despite the ongoing legal reviews.

Republicans have maintained their actions were in line with the state Constitution when, rather than allowing the minimum wage and paid sick leave petitions to be placed on the ballot, they adopted the proposals and amended them so as not to overly burden Michigan businesses.

But Democrats have argued it is unconstitutional to adopt initiated legislation only to “gut” it in the same two-year session.  

Organizers had collected hundreds of thousands of petition signatures to send the proposals to the Legislature, which has constitutional authority to adopt initiatives within 40 days or allow them to go to the ballot.

Michigan Gov. Gretchen Whitmer, a Democrat who took office Jan. 1, had not  heard about the Supreme Court development by mid-day Wednesday but said “lame-duck sessions move fast and furious and mistakes get made.”

Senate Majority Leader Mike Shirkey, a Clarklake Republican who sponsored changes to the paid sick leave law and pushed for a Supreme Court review, is "eager to have the process move forward," said spokeswoman Amber McCann.

"He wishes the uncertainty would be removed sooner, but he is confident in the eventual outcome and will remain patient."

Brian Calley, president of the Small Business Association of Michigan who was lieutenant governor last year, echoed the sentiments, saying the Supreme Court "has the  opportunity to improve the jobs climate by removing any uncertainty" about the status of the laws. 

Nessel spokeswoman Kelly Rossman-McKinney said the attorney general won't issue her own legal opinion on the laws "unless or until the matter remains unsolved following the outcome" of the Supreme Court review, which she said is consistent with past precedent. 

But the Supreme Court has asked the Attorney General's office to submit legal briefs arguing "both sides" of the case," Rossman-McKinney said, calling it an "unusual" but "not unprecedented" request. 

"Twice in the last 10 years the Michigan Supreme Court has ordered the Department of Attorney General to brief both sides of an issue: in 2016 on the funding of private schools and in 2011 on taxing pensions," she noted.

Danielle Atkinson, co-chair of the MI Time To Care committee that collected signatures for the paid sick leave initiative, said lawmakers “failed to follow” the Constitution when they amended the law, and she hopes the Michigan Supreme Court will agree.

“We believe the scheme was a clear violation of Michigan’s Constitution,” she said  in a statement, noting lawmakers have the option to send initiatives to the ballot, approve them or also put an alternative before voters.

“The Legislature chose to create an unconstitutional fourth option by passing the law in September with the intention of gutting it in December before it ever took effect,” Atkinson said.

Under the amended laws, Michigan’s minimum wage is set to increase from $9.25 to $12.05 per hour by 2030, slowing the initial proposed increase to $12 by 2022. The minimum wage for tipped restaurant workers will rise to $4.58 by 2030 instead of $12 by 2024.

Lawmakers also exempted companies with fewer than 50 employees from the paid sick leave law, ensuring it does not apply to more than 160,000 small businesses that collectively employ more than 1 million workers across the state.

The Michigan Supreme Court is asking the Michigan House and Senate, along with any member of either chamber, to file legal briefs as it considers whether to issue an advisory opinion on the legality of the legislative maneuver.

Other people or groups can seek permission to file their own arguments in the matter. Briefs arguing for the constitutionality of the amended laws are due by May 15, while opposition briefs are due by June 19.

While Nessel has been asked for her own legal opinion, past attorneys general have offered conflicting opinions on the legality of the move.

In a 1964 opinion, then-Attorney General Frank Kelly, a Democrat, held that adopting an initiative sent to the Legislature through a petition drive only to change it in the same session would violate “the spirit and letter” of the process allowed under the 1963 Constitution.

But former Attorney General Bill Schuette, a Republican, upended that opinion last year and gave his legal blessing to the adopt-and-amend strategy.

Voters who approved the Michigan Constitution "did not impose any express limitations on amending a legislatively enacted initiated law,” Schuette wrote in an opinion issued a day before Republicans proceeded to change both laws.