GOP petition moves on wages, paid leave go before Michigan Supreme Court

Jonathan Oosting
The Detroit News

Lansing — Attorney General Dana Nessel’s office will play a unique role Wednesday in the Michigan Supreme Court, arguing both sides as justices consider whether Republican lawmakers violated the state constitution when they approved but then quickly weakened minimum wage and paid sick leave initiatives.

The high court is set to hear oral arguments over the unprecedented adopt-and-amend maneuver, which the GOP-led Legislature executed to keep the measures off the ballot and make them more business-friendly before taking effect. Hundreds of thousands of voters had signed two separate petitions.

Nessel, a Democrat, has blasted the Republican efforts to undermine the petition drives, which were spearheaded by liberal groups. But because she also represents state entities, the Supreme Court directed her office to defend the maneuver as well.

Solicitor General Fadwa Hammoud

Deputy Solicitor General Eric Restuccia is expected to do so in court, arguing in support of the action by GOP legislators but discouraging the Supreme Court from issuing an opinion. Michigan Solicitor General Fadwa Hammoud, backing Nessel’s position, will urge the justices to declare the move unconstitutional.

“Due to its unique role as the People's attorney, the Department of Attorney General often acts as a legal advocate on different sides of a given issue while safeguarding the integrity of each side,” Nessel’s office said ahead of the oral arguments.

Michigan’s Republican-led House and Senate in February asked the high court to weigh in, requesting an advisory opinion that could stave off expected lawsuits over the controversial decision to adopt and amend initiatives in the same session.

The petitions sought to raise Michigan’s minimum wage to $12 an hour by 2022 and guarantee up to 72 hours of earned sick time a year at companies across the state. The revised laws raise the minimum wage to $12.05 by 2030 and require companies with more than 50 employees to offer up to 40 hours of paid sick leave.

Republican former Gov. Rick Snyder signed the changes into law in December, calling the revised measures the “right policy for the state of Michigan.”

Democratic Gov. Gretchen Whitmer, who took office in January, opposed the legislative maneuver in a Supreme Court brief, arguing lawmakers “gutted” the initiative process “and validated the popular distrust that drove its creation.”

At issue is whether lawmakers can adopt and amend citizen-initiated legislation in the same two-year session, effectively rewriting them before they take effect. The Republican-led Legislature did so last year after Republican then-Attorney General Bill Schuette gave his legal blessing.

But the Michigan Supreme Court is also asking the attorney general’s office to argue whether it should even issue an opinion it is not legally required to — and whether it even can since the revised law took effect in late March.

The Michigan Constitution allows the House, Senate or governor to “request the opinion of the Supreme Court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.”

The Michigan Supreme Court in 2007 held it “indisputably” had jurisdiction to issue opinions on an active statute so long as the request was made before the law took effect.

But the “better reading” of the constitution and communications by its drafters “is that the opinion must issue before the effective date of the legislation, Restuccia wrote in the July 10 filing.

Michigan Republicans have filed court briefs backing the lame-duck move, as has a coalition that includes the Michigan Manufacturers Association, Michigan Restaurant and Lodging Association, Small Business Association of Michigan, Michigan Chamber of Commerce and West Michigan Policy Forum.

“A plain reading of the text of the Constitution clearly demonstrates that the Legislature may amend a law initially proposed by initiative at any time following enactment,” attorneys for the Michigan Senate and House argued in court briefs.