Judge dismisses Flint water charges against Snyder

Attorneys spar on whether GOP minimum wage move 'a slap in the face to the people'

Jonathan Oosting
The Detroit News
Solicitor General Fadwa Hammoud talks to reporters outside the Michigan Supreme Court on July 17, 2019.

Lansing — A Republican maneuver to weaken minimum wage and paid sick leave initiatives was "an insult to our Constitution” and a "slap in the face to the people" who had petitioned to put the measures on the ballot, Solicitor General Fadwa Hammoud argued Wednesday before the Michigan Supreme Court. 

Republican legislators are asking the state's highest court for an advisory opinion on whether they had constitutional authority to amend the initiatives in last year's lame-duck session to make them more business-friendly. The court's decision could influence likely lawsuits and future legislative action.

“The people who proposed (the minimum wage and paid sick leave initiatives) never anticipated that their power could so easily be evaded through the simple façade of adopt and amend, thereby rendering their voice powerless,” Hammoud argued.

Attorney General Dana Nessel, a Democrat who observed from the gallery, joined Hammoud in court briefings that argued the GOP-led Legislature's move was unconstitutional. But justices asked her office to argue both sides of the case as they consider the GOP request for a legal opinion that could shape future litigation.

The state’s governing document grants citizens the right to initiate legislation by petition drive 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 during the same two-year session.

Deputy Solicitor General Eric Restuccia told justices the Michigan Constitution allows lawmakers to amend any law they approve regardless of whether it was initiated by petition drive.

“Do you think the Legislature thwarted the will of the people?” Justice Richard Bernstein, a Democratic nominee, asked Restuccia.

“The unambiguous reading (of the state Constitution) is that the people have placed legislatively enacted laws — initiated by petition or not — on the same plane,” he told justices. “They’re subject to amendment within the same session.”

Restuccia acknowledged the Legislature could use the adopt-and-amend maneuver for “cynical” reasons. But if that is the case, he said, voters would have remedies at the ballot box, including a referendum on the new law or legislative elections.

“If you’re concerned, people should ‘throw the rascals out,’” Restuccia said.

Making a 'pantomime'?

Justices appeared skeptical of arguments on both sides, repeatedly interrupting attorneys to ask questions and occasionally citing commentary from the constitutional convention that produced the current rules now in dispute.

Justice Stephen Markman, a Republican nominee on the 4-3 conservative court, questioned what would be left of the initiative process if the Legislature is allowed to “go through this pantomime” of adopting but then quickly changing an initiative to “get things done the right way.”

“What is the point of it all?” Markman asked.

Lawmakers said they amended the paid sick leave and minimum wage laws to make them more business-friendly after warning the initiatives could cripple industry and force job layoffs, hurting the very people they were supposed to help.

Former Solicitor General John Bursch, representing Republican lawmakers in the case, argued the courts should not consider the intent of the Legislature — only whether they acted within the constraints of the state Constitution.

Bursch warned against an unlikely trial scenario in which every member of the House and Senate would be put on the stand to explain their motivation for an individual vote.

“It’s impossible to unscramble the egg once that’s happened,” he said. “And we don’t want jurors to try to decide on that spectrum, ‘Is this a little thwart? Was it a lot of thwart? Or was it so much thwart that it’s unconstitutional?’”

Speaking hypothetically, Bursch said the Legislature may have been working to support the will of the people because they realized the initiatives were “too aggressive” and would result in people losing their jobs as companies scaled back or used cheaper technology.

“The amendment is the realization that (the initiatives) could hurt workers,” he argued, adding that nothing in the Constitution prevented lawmakers from amending the initiated laws in the same-two year session.

Attorney Sam Bagenstos, representing Democratic lawmakers opposed to the GOP maneuvers, agreed the court should not — and does not have to — consider the Legislature’s intent last fall.

The question is, “Does this procedure that was employed by the Legislature provide a ready means of evading or thwarting … the people’s reserved power?” he said.

Bagenstos urged justices to consider precedent, arguing that sanctioning the adopt-and-amend practice would give the Legislature the power to “kill any initiative it doesn’t like.”

“The genie’s out of the bottle,” he said. “If this court approves of what the Legislature did in the last session, then there’s no reason to believe this will be the last time we’ll see this.”

If Democrats retake control of the Legislature, they could hypothetically thwart conservative initiatives to expand gun rights or charter schools, he said.

Chief Justice Bridget McCormack, a Democratic nominee, appeared to agree on the point. While the case before the court is “hyper-partisan,” the process question is a “politically neutral” one, she said.

“The weapon will be available to any party that can control two branches of government, isn’t that right?” McCormack asked.

'This feels fraught'

McCormack questioned whether anything could stop a Legislature from adopting and immediately amending an initiative even if lawmakers explicitly stated their goal was to undermine the will of the people.

But she also envisioned plausible scenarios in which the Legislature could make a “friendly” amendment to a law, fixing a drafting error or amending a statute to facilitate its implementation.

“I’m still struggling with, you know, some amendments are thwartish and some are facilitative," McCormack said, voicing concern a court would have to figure out what the Legislature was thinking. “This feels fraught.”

Justice Megan Cavanagh, a Democratic nominee, questioned why voters would go through the petition process if legislators have an “escape hatch” to simply adopt and amend an initiative to "gut" it.

As attorneys debated the motivation of the state’s constitutional authors, Bernstein suggested their work was based on the principle that citizens have a belief “in the integrity of government.”

“Do you feel that the conduct of your client goes to that mission?” Bernstein asked Bursch, who is representing lawmakers.

“I do believe that the Legislature acts with integrity, and I do think they acted in this case out of what they thought was in the people’s best interest,” Bursch said. “But what our constitutional founding also makes clear is that the judicial branch is not in a position to make up rules and make up limits that aren’t already in the text.”

The Michigan Constitution gives the lawmakers 40 days to adopt initiated legislation or allow it to go to the statewide ballot. But it also allows lawmakers to object and propose an alternative, which would be placed on the ballot alongside the initial initiative.

“They could have proposed their own, but guess what? It still has to be tested at the ballot box,” Hammoud said. Allowing adopt-and-amend “would create a permanent escape route for the Legislature, for the people to never get their voice through initiative power onto a ballot,” she said.

Lawmakers are elected to represent the people’s voice in Lansing, Markman noted. The state Constitution gives voters the power of initiative, he said, but it also provides a mechanism to elect legislators with the power to determine policies.

“What happened in this process is that they evaded any chance to be held accountable by the people by doing it two days after the people could have voted,” Hammoud said, noting lawmakers acted during the lame-duck session after some were re-elected and others were preparing to leave office due to term limits.

All options on table

Danielle Atkinson of MI Time to Care, the group that organized the paid sick leave petition drive, watched arguments from the gallery and said she is hoping the Michigan Supreme Court will give guidance to the Legislature on an “issue that really speaks to our democracy.”

The Legislature “completely gutted what we had been talking about,” she said.

The paid sick leave committee remains active and will consider next steps once the Supreme Court weighs in or declines to do so, Atkinson told reporters after Wednesday’s hearing.

If necessary, “we are prepared to put this back on the ballot,” she said. “We’re leaving everything on the table.”

Bursch told reporters he thought oral arguments “went extremely well” from the Legislature’s perspective.

“I think what the questions and the answers made clear is that on one side you’ve got the text of the Constitution, and that is what the Legislature is urging the court to apply,” he said. “On the other side, you just have a bunch of policy arguments being made by folks who are dissatisfied with the outcomes.”

Hammoud also expressed confidence in her arguments that the move was unconstitutional.

“I think the people’s voice hopefully was loud and clear, and I hope the court upholds the public’s faith in their Constitution and that their Constitution still has meaning,” she said.

The Michigan Supreme Court is not obligated to provide an advisory opinion, and it’s not clear when justices might decide the issue.

Attorney Mark Brewer, a former Michigan Democratic Party Chairman now representing the minimum wage and paid sick leave petition groups, urged the court to weigh in and declare the process unconstitutional.

“But if the court also wants to provide us a remedy of putting those proposals on the ballot, that’s agreeable as well,” he said. “Because that would vindicate the people’s rights and put them back in the position they would have been in if the Legislature had not done this unconstitutional act.”

Restuccia was the lone voice urging the court to reject the Legislature’s request for an advisory opinion, arguing the Constitution only allows for such an opinion before a law is enacted.

The Supreme Court has traditionally held that a request must be made before a law takes effect but has issued roughly two dozen opinions on active laws. 

“How has such a fundamental proposition been so overlooked for such a lengthy period of time?” Markman asked.