Last Thursday, Michigan Attorney General Dana Nessel filed an application for leave to appeal in the Michigan Supreme Court, seeking to have the Court overturn the Court of Appeals’ decision on “adopt-and-amend.”
In 2018, the Michigan Legislature voted to adopt a citizen-initiated referendum in full and then moved to amend it within the same legislative session (now often referred to as “adopt-and-amend”). The relief Nessel is seeking in the courts would declare this practice as unconstitutional, as well as any attempts to repeal a citizen-initiated referendum within the same session.
The Court of Appeals concluded on January 26, 2023, that Public Acts 368 and 369 of 2018, were constitutional even though those bills, which were passed by the Legislature during the “lame duck” session and which were related to initiative petitions to increase the minimum wage and to provide for the accrual of paid sick leave—amended a prior initiative petition that the Legislature had adopted with no changes. The Court of Appeals overturned an earlier decision by the Court of Claims, which held that adopt-and-amend is unconstitutional.
“The Legislature adopting an initiative and then amending or repealing it within the same legislative session is contrary to the People’s understanding of our Constitution. It undermines the will of the People, and weakens direct democracy,” said Nessel. “I am hopeful that the Michigan Supreme Court will weigh in on this important question.”
This lawsuit challenges the constitutionality of Public Acts 368 and 369 of 2018, related to initiative petitions to increase the minimum wage and to provide for the accrual of paid sick leave. More broadly, the lawsuit raises the question whether, under article 2, § 9 of the Michigan Constitution, a Michigan Legislature can adopt an initiative petition and then amend or repeal it in the same legislative session.
Article 2, § 9 allows Michigan voters to exercise various forms of direct democracy, one of which is to initiate legislation via petitions signed by a requisite number of voters. The initiative petitions at issue in this case were originally slated to be put on the ballot in 2018 as a result of a citizen-initiated petition drive. The Legislature ultimately adopted both “without change or amendment” on September 5, 2018, as Public Acts 337 and 338. Enacting them meant that they were not submitted to the People for approval or rejection at the next general election. Had they been submitted to the people and adopted, they would only have been amendable with a three-fourths majority in the Legislature. Instead, the Legislature adopted the measures and then turned around in the same legislative session and amended them with a simple majority, which—as ordinary legislation—then-Governor Rick Snyder signed into law.
Contemporaneous with the adoption of article 2, § 9, former Michigan Attorney General Frank Kelley opined that “the legislature enacting an initiative petition proposal cannot amend the law so enacted at the same legislative session,” because this would violate both the spirit and letter of the Michigan Constitution. Former Michigan Attorney General Bill Schuette issued a new opinion which superseded the prior opinion and concluded that the Legislature could enact amendments to an initiated law during the same session at which the initiated law was itself enacted.
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