Conservative justices argue nothing in the state constitution restricts the legislative branch from adopting and amending
By Ben Solis
Gongwer News Service
A landmark 4-3 decision six years in the making from the Michigan Supreme Court landed on Wednesday, holding that the Legislature cannot adopt and then amend voter-initiated laws in the same session.
The ruling found that the scheme was unconstitutional and struck at the spirit of direct democracy. The court thus reinstated the two voter-initiated laws – PA 337 of 2018 and PA 338 of 2018. The high court ordered the laws to go into effect on February 21, 2025, and invalidated the Legislature’s amended versions of the laws, PA 368 of 2018 and PA 369 of 2018.
One of the laws called for raising Michigan’s minimum wage to $12 per hour by 2022 and bringing the tipped minimum wage up to the regular minimum wage. The other mandated paid sick time for workers.
The opinion in Mothering Justice v. Attorney General (MSC Docket No. 165325) was written by Justice Elizabeth Welch, who was joined by her liberal colleagues Justice Richard Bernstein, Justice Megan Cavanagh and Justice Kyra Harris Bolden.
“We hold that this decision to adopt the initiatives and then later amend them in the same legislative session (what has been referred to as ‘adopt-and-amend’) violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process,” Welch wrote.
For the minimum wage increase, the majority ordered a revised schedule that links the gradual phase-in of minimum-wage increases to the same annual schedule as originally proposed, but set into the future, and accounting for inflation. The current minimum wage is $10.33 for most non-tipped workers and $3.93 for tipped workers.
Justice Brian Zahra wrote a dissenting opinion joined by Chief Justice Elizabeth Clement and Justice David Viviano. The conservative justices would have held that the adopt and amend scheme was permissible.
Supporters of the initiated laws claimed victory on Wednesday, noting the high court’s affirmation of direct democracy, while opponents prophesied doom for the restaurant industry and businesses statewide.
The case originated with two initiative petitions sponsored by One Fair Wage and Time to Care. The became known respectively as the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act after being submitted to the Legislature in 2018.
The groups collected the required number of voter signatures as required by election law and filed the petitions with the Department of State, then headed by former Secretary of State Ruth Johnson.
Johnson notified the Board of State Canvassers, which then canvassed the petitions and submitted them to the Legislature pursuant to Article II, Section 9 of the Constitution. The provision allows the Legislature to adopt voter-initiated petitions as written without change or amendment or pass on adoption and instead place them on the ballot for voters to decide.
The Republican-controlled Legislature adopted the laws on September 5, 2018. Neither petition appeared on the 2018 ballot as a result.
The strategy was to avoid the possibility of voter adoption of the proposals, which under the Constitution would mean any future legislative attempts to amend the laws would require three-quarters majorities in both legislative houses. There was no question that should the Legislature adopt the initiatives that future changes would only require a simple majority. What was not clear was whether they could do so during the same legislative session given the purpose of the constitutional provision is to allow citizens to work with the Legislature to enact laws over the opposition of the governor.
That year, current Gov. Gretchen Whitmer, a Democrat, beat then-Attorney General Bill Schuette in the 2018 gubernatorial election. The Republican-controlled Senate asked Schuette for a legal opinion regarding the Legislature’s legal authority to adopt and amend a voter-initiated law in the same legislative session.
Schuette opined that the Legislature could do just that, contradicting a 1964 opinion issued by then-Attorney General Frank Kelley.
The Legislature during the lame duck session made significant changes to the two laws, gutting their core provisions, and passed the amended laws with a simple majority vote. Outgoing Gov. Rick Snyder signed the laws with an effective date of March 29, 2019.
Although Whitmer ascended to executive office in 2019, the Legislature was still controlled by Republicans in the House and Senate. An advisory opinion on the constitutionality of the adopt and amend strategy was sought from the Supreme Court that year.
The high court was led then by the liberal former Chief Justice Bridget McCormack but had a conservative majority. Still, the conservative Clement joined McCormack, Bernstein and Cavanagh to deny the request, finding it inappropriate to rule on the controversy.
Clement wrote then that the Constitution did not give the court jurisdiction to issue an opinion on the effective date of an act. Even though the court had issued similar opinions in the past, Clement said, as, “most of the remaining post-effectiveness advisory opinions left the question of the timing of the request and the propriety of issuing a post-effectiveness opinion unaddressed.”
That meant without an actual controversy, like a lawsuit challenging the laws, the Supreme Court would not rule on the laws in question.
An actual controversy arose soon after in the form of Mothering Justice v. Attorney General, naming the newly elected Attorney General Dana Nessel, a Democrat.
The plaintiffs, Mothering Justice and One Fair Wage, argued that the adopt and amend scheme was unconstitutional, and that the laws initially adopted by the Legislature were still in effect.
Nessel asserted that she agreed with the plaintiffs, signaling no controversy, so the Court of Claims allowed the plaintiffs to amend their complaint to add the state as a defendant – defending the Legislature’s actions – but leaving Attorney General on the case caption solely as a representative of the state.
Unified in their positions that the Legislature could not adopt and amend the laws in the same session, Nessel and the plaintiffs both filed motions for summary disposition arguing against the Legislature’s actions.
Nessel also asserted the two adopted laws prior to amendment would be in full effect if the amended acts were declared unconstitutional.
The Legislature, however, argued that the Constitution did not expressly prohibit the “adopt and amend” strategy in the same session.
Court of Claims Judge Douglas Shapiro sided with the plaintiffs, reasoning that the strategy employed by the Legislature did not appear in Article II, Section 9.
An appeal followed, and the panel assigned to the case reversed Shapiro’s opinion, finding that the move was allowed because the Constitution did not expressly prohibit adopt and amend in the same session. The opinion was written by Court of Appeals Judge Christopher Murray, with separate concurring opinions from Judge Michael Kelly and Judge Michael Riordan.
Mothering Justice and One Fair Wage then sought to reverse the Murray’s opinion before the Supreme Court, which heard oral arguments on the matter six years after the controversy arose.
—————
Majority rules the strategy was unconstitutional
In the opinion issued Wednesday, Welch and the majority ruled similarly to Shapiro, finding that Article II, Section 9 of the Constitution provides three, and only three, options upon receiving a valid petition.
Welch wrote that the Legislature may not adopt an initiative petition and then later amend it in the same session because it violates the people’s right to propose and enact laws through the initiative process.
Most lawmaking power is vested to the Legislature under Article IV, Section 1, but Article II, Section 9 reserves that power for the people. Under that provision, the Legislature’s three choices regarding initiated laws are to adopt them without change or amendment within 40 days; to reject the proposal and place it on the ballot in the next general election; or reject the proposal and propose a different measure on the same subject.
That said, the plain text of Article II, Section 9 does not allow an option for the Legislature to reject an initiative outright without voter approval. Allowing “adopt and amend” as the Legislature did in 2018 would render Section 9 as “surplusage,” Welch wrote.
The canons of constitutional construction also dictate that the text’s original meaning to the ratifiers the people, at the time of ratification had to be considered. Welch said it would be absurd and implausible to assume or conclude that the people of Michigan – who only approved three options regarding initiated laws – allowed for a fourth and wholly contradictory option.
Welch further posited that the text of the provision is unambiguous, and that means it must be liberally construed in favor of the people.
“Although we agree that the text is unambiguous, we find that it unambiguously provides three possible options, as discussed previously,” Welch wrote. “To the extent that one finds that Article II, Section 9 is ambiguous due to its silence as to the permissibility of adopt-and-amend, a liberal construction in the people’s favor surely cuts against that fourth option. Construing Article II, Section 9 in favor of the people requires that we not allow the Legislature to sidestep the people’s reserved power.”
Undermining that reserved power would strike a blow to the heart of direct democracy and the very reason why the power was reserved in the first place, she said.
“Michigan voters reserved the initiative power to themselves to make government more responsive to the people. Until 1908, Michigan did not allow initiatives or referenda in any capacity,” Welch wrote. “In the early 20th Century, however, voters across the country grew tired of unresponsive and corrupt state legislatures. To gain a more responsive government, Michigan voters demanded direct democracy powers.”
The 1908 Constitution only allowed for the Legislature to place a bill on the ballot, while the amended 1913 Constitution allowed for citizen petitions because there was a sense that the legislative-sponsored initiatives were insufficiently responsive.
Initiated law processes grew stronger out of the 1963 Constitution, with the constitutional convention adding provisions to remove overly technical language.
“It appears that contemporaneous observers understood that adopt-and-amend is impermissible,” Welch wrote, looking to history in addition to constitutional construction. “We find that the record of the constitutional convention supports our holding. Delegate Downs, for example,
emphasized that the framers ‘wanted to guard against … a situation where the people go to all the effort of an initiative campaign, which is hard work, win it, and then have the Legislature by a 51 percent vote reverse it.’ … His comments demonstrate that neither the framers nor the ratifiers could have envisioned the Legislature rejecting an initiative’s key proposals while sidestepping the will of the people.”
Welch said those considerations should make clear why no Legislature, up until the 2018 controversy, had attempted such a scheme.
“Indeed, by attempting to both reject an initiative and sidestep the people, adopt-and-amend impermissibly ‘thwarts’ the power that the people reserved for themselves,” she added. “As we have held, the people’s reserved power under Article II, Section 9 must ‘be saved if possible’ from ‘evasion or parry by the Legislature.’”
Welch also called foul on the argument that the Legislature has plenary power that allows it to “do anything which it is not prohibited from doing by the people through the Constitution.”
“That argument lacks merit. To start, it conflicts with (past precedent). The Constitution does not expressly prohibit adopt-and-repeal. Nevertheless, despite the Legislature’s Article IV powers, we held that the Legislature may not employ an adopt-and-repeal scheme,” she wrote. “Moreover, as discussed earlier, the people reserved the power of the initiative to themselves. Accordingly, to the extent that the Legislature’s lawmaking power is plenary under Article IV, that power does not apply to the initiative, which is a right reserved to the people. By reserving the initiative power to the people, the Constitution limits the Legislature’s role with respect to initiatives to the powers expressly conferred upon it.”
In terms of remedies, and as it relates specifically to the minimum wage increase, Welch said the original unamended Wage Act established a gradual phase-in period, and appropriate remedy would also include a gradual increase over a similar period.
“To fashion an appropriate remedy that reflects the original initiative’s purpose, we hold that a gradual phase-in mirroring the structure of the original Wage Act is most consistent with the Wage Act’s intent,” she wrote. “Accordingly, we adopt a remedy that links wage increases to the same annual schedule as originally proposed, but set into the future, starting on the effective date of this opinion.”
Bolden, in a concurring opinion, agreed with the majority, but wrote separately to express her disappointment that “although petitioners followed the initiative clause of the Constitution to a tee, the issue somehow evaded the fundamental constitutional guarantee of placement on a ballot.”
“After all, that was the alternative that was given if the Legislature chose to reject the initiative’s proposed legislation,” Bolden wrote. “However, at this point, this solution, too, would seem to defy the language of the Constitution itself and thus would be inadequate. Further, if the Legislature chose not to enact a proposed initiative, both options available to the Legislature involved placing the issue on the ballot for majority approval at the ‘next general election.’”The next general election would have been the 2018 contest, and not the 2020 contest after it.
“The initiative petition to which we now give our consideration, without dispute, met all statutory criteria to be on the 2018 ballot, including approval by the Board of State Canvassers. However, this initiative petition has not met any of the statutory criteria or received any of the necessary approvals to be on the ballot for the upcoming general election,” she added. “The Constitution does not appear to authorize us to remedy the situation in this case through the means seemingly intended – by placing it on the ballot.”
—————
Dissent argued that the scheme was permissible
The conservative justices would have ruled otherwise. In dissent, Clement wrote that Article VI, Section 1 vests the Legislature with the power to amend existing laws.
“And it has always been understood that the Legislature’s power under (the Constitution) is limited only if the Constitution expressly says so. Article II, Section 9 is silent about whether the Legislature may amend a law proposed by initiative petition that the Legislature has enacted, yet the majority concludes that the Constitution restricts the Legislature from amending a law proposed by initiative petition in the same legislative session – but, curiously, not later sessions.”
Although Clement said there was certainly reason to feel frustrated by the Legislature’s actions in 2018, which enacted a proposed initiative to avoid ballot approval only to substantially alter it, nothing in Article II, Section 9 restricts the legislative branch from doing just that.
“And as tempting as it might be to step into the breach, this court lacks the power to create restrictions out of whole cloth,” Clement wrote. “That power remains with the people, as our Constitution dictates.”
Although Zahra joined Clement’s opposition to the majority holding, he wrote separately to level his own punches against Welch’s opinion.
“Despite the extensive authority of the Legislature to enact statutes in the public interest absent narrow constitutional limitations, despite the complete lack of constitutional language preventing the Legislature from amending an adopted initiative, despite the extensive constitutional record supporting the Legislature’s ‘full control’ over adopted initiatives, and despite the total absence of caselaw limiting legislative prerogatives when the text of Article II, Section 9 is otherwise silent, the Court declares amendments to the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act unconstitutional,” Zahra wrote. “In so doing, it does not hold that adopt-and-amend is unconstitutional; it cannot so hold given the text of the Michigan Constitution and considering the effective functioning of a constitutional system.”
Instead, Zahra said, the majority superimposed a new requirement on the Constitution and abrogated “with precision” the legislation enacted in 2018.
“In the process, the majority opinion leaves later Legislatures free to adopt and amend as they please under this court’s newly devised guideposts. Given the majority opinion’s novel and legally unsupported ‘same legislative session’ rule, and the attendant conclusion that the laws at issue are unconstitutional, the court is now left in a quandary. Generally speaking, in those rare instances when a statute is declared unconstitutional, the court closely analyzes the law to save as much of the statute from invalidity as possible. By severing unconstitutional provisions, the court preserves ‘legislative intent’ while also preventing the court from being thrust into ‘judicial policymaking or de facto judicial legislation.”
In what he called a “misinterpretation” and an “erroneous decision on the merits,” the court was now left unable to sever unconstitutional provisions.
“Instead, two statutory acts expressly and unequivocally approved by the Legislature and signed by the governor are now declared unconstitutional in toto,” Zahra wrote. “Lacking any ability to limit its holding to certain individuals or the ability to sever provisions while saving the remainder of the acts, this court has two options. It can declare the relevant statutes void, or it can revive earlier versions of the statutes in their entirety to the extent it is consistent with legislative intent.”
Zahra said the majority chose neither of these options.
“Instead, the court abrogates the statutes the Legislature chose to enact, revives the outline of laws that the Legislature rejected, and wholesale rewrites the substance of those revived laws in a manner detached from the express statutory language and guided only by what the court views as ‘equitable,’” he wrote. “Ironically, the majority opinion declares the Legislature’s attempt to adopt and amend unconstitutional, yet it uses its judicial power to revive and amend the initiative that was intended to be placed on the ballot for public consideration. In the clearest way possible, the court exercises legislative power, drafting new legislation that has never been approved by the Legislature or approved by the voters.”
Zahra added that the majority did so, “without a single vote of support from the elected Legislature or the citizens,” and “has now written the public policy of this state as to minimum wages, tipped wages, and earned sick time.”
Gongwer News Service
A landmark 4-3 decision six years in the making from the Michigan Supreme Court landed on Wednesday, holding that the Legislature cannot adopt and then amend voter-initiated laws in the same session.
The ruling found that the scheme was unconstitutional and struck at the spirit of direct democracy. The court thus reinstated the two voter-initiated laws – PA 337 of 2018 and PA 338 of 2018. The high court ordered the laws to go into effect on February 21, 2025, and invalidated the Legislature’s amended versions of the laws, PA 368 of 2018 and PA 369 of 2018.
One of the laws called for raising Michigan’s minimum wage to $12 per hour by 2022 and bringing the tipped minimum wage up to the regular minimum wage. The other mandated paid sick time for workers.
The opinion in Mothering Justice v. Attorney General (MSC Docket No. 165325) was written by Justice Elizabeth Welch, who was joined by her liberal colleagues Justice Richard Bernstein, Justice Megan Cavanagh and Justice Kyra Harris Bolden.
“We hold that this decision to adopt the initiatives and then later amend them in the same legislative session (what has been referred to as ‘adopt-and-amend’) violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process,” Welch wrote.
For the minimum wage increase, the majority ordered a revised schedule that links the gradual phase-in of minimum-wage increases to the same annual schedule as originally proposed, but set into the future, and accounting for inflation. The current minimum wage is $10.33 for most non-tipped workers and $3.93 for tipped workers.
Justice Brian Zahra wrote a dissenting opinion joined by Chief Justice Elizabeth Clement and Justice David Viviano. The conservative justices would have held that the adopt and amend scheme was permissible.
Supporters of the initiated laws claimed victory on Wednesday, noting the high court’s affirmation of direct democracy, while opponents prophesied doom for the restaurant industry and businesses statewide.
The case originated with two initiative petitions sponsored by One Fair Wage and Time to Care. The became known respectively as the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act after being submitted to the Legislature in 2018.
The groups collected the required number of voter signatures as required by election law and filed the petitions with the Department of State, then headed by former Secretary of State Ruth Johnson.
Johnson notified the Board of State Canvassers, which then canvassed the petitions and submitted them to the Legislature pursuant to Article II, Section 9 of the Constitution. The provision allows the Legislature to adopt voter-initiated petitions as written without change or amendment or pass on adoption and instead place them on the ballot for voters to decide.
The Republican-controlled Legislature adopted the laws on September 5, 2018. Neither petition appeared on the 2018 ballot as a result.
The strategy was to avoid the possibility of voter adoption of the proposals, which under the Constitution would mean any future legislative attempts to amend the laws would require three-quarters majorities in both legislative houses. There was no question that should the Legislature adopt the initiatives that future changes would only require a simple majority. What was not clear was whether they could do so during the same legislative session given the purpose of the constitutional provision is to allow citizens to work with the Legislature to enact laws over the opposition of the governor.
That year, current Gov. Gretchen Whitmer, a Democrat, beat then-Attorney General Bill Schuette in the 2018 gubernatorial election. The Republican-controlled Senate asked Schuette for a legal opinion regarding the Legislature’s legal authority to adopt and amend a voter-initiated law in the same legislative session.
Schuette opined that the Legislature could do just that, contradicting a 1964 opinion issued by then-Attorney General Frank Kelley.
The Legislature during the lame duck session made significant changes to the two laws, gutting their core provisions, and passed the amended laws with a simple majority vote. Outgoing Gov. Rick Snyder signed the laws with an effective date of March 29, 2019.
Although Whitmer ascended to executive office in 2019, the Legislature was still controlled by Republicans in the House and Senate. An advisory opinion on the constitutionality of the adopt and amend strategy was sought from the Supreme Court that year.
The high court was led then by the liberal former Chief Justice Bridget McCormack but had a conservative majority. Still, the conservative Clement joined McCormack, Bernstein and Cavanagh to deny the request, finding it inappropriate to rule on the controversy.
Clement wrote then that the Constitution did not give the court jurisdiction to issue an opinion on the effective date of an act. Even though the court had issued similar opinions in the past, Clement said, as, “most of the remaining post-effectiveness advisory opinions left the question of the timing of the request and the propriety of issuing a post-effectiveness opinion unaddressed.”
That meant without an actual controversy, like a lawsuit challenging the laws, the Supreme Court would not rule on the laws in question.
An actual controversy arose soon after in the form of Mothering Justice v. Attorney General, naming the newly elected Attorney General Dana Nessel, a Democrat.
The plaintiffs, Mothering Justice and One Fair Wage, argued that the adopt and amend scheme was unconstitutional, and that the laws initially adopted by the Legislature were still in effect.
Nessel asserted that she agreed with the plaintiffs, signaling no controversy, so the Court of Claims allowed the plaintiffs to amend their complaint to add the state as a defendant – defending the Legislature’s actions – but leaving Attorney General on the case caption solely as a representative of the state.
Unified in their positions that the Legislature could not adopt and amend the laws in the same session, Nessel and the plaintiffs both filed motions for summary disposition arguing against the Legislature’s actions.
Nessel also asserted the two adopted laws prior to amendment would be in full effect if the amended acts were declared unconstitutional.
The Legislature, however, argued that the Constitution did not expressly prohibit the “adopt and amend” strategy in the same session.
Court of Claims Judge Douglas Shapiro sided with the plaintiffs, reasoning that the strategy employed by the Legislature did not appear in Article II, Section 9.
An appeal followed, and the panel assigned to the case reversed Shapiro’s opinion, finding that the move was allowed because the Constitution did not expressly prohibit adopt and amend in the same session. The opinion was written by Court of Appeals Judge Christopher Murray, with separate concurring opinions from Judge Michael Kelly and Judge Michael Riordan.
Mothering Justice and One Fair Wage then sought to reverse the Murray’s opinion before the Supreme Court, which heard oral arguments on the matter six years after the controversy arose.
—————
Majority rules the strategy was unconstitutional
In the opinion issued Wednesday, Welch and the majority ruled similarly to Shapiro, finding that Article II, Section 9 of the Constitution provides three, and only three, options upon receiving a valid petition.
Welch wrote that the Legislature may not adopt an initiative petition and then later amend it in the same session because it violates the people’s right to propose and enact laws through the initiative process.
Most lawmaking power is vested to the Legislature under Article IV, Section 1, but Article II, Section 9 reserves that power for the people. Under that provision, the Legislature’s three choices regarding initiated laws are to adopt them without change or amendment within 40 days; to reject the proposal and place it on the ballot in the next general election; or reject the proposal and propose a different measure on the same subject.
That said, the plain text of Article II, Section 9 does not allow an option for the Legislature to reject an initiative outright without voter approval. Allowing “adopt and amend” as the Legislature did in 2018 would render Section 9 as “surplusage,” Welch wrote.
The canons of constitutional construction also dictate that the text’s original meaning to the ratifiers the people, at the time of ratification had to be considered. Welch said it would be absurd and implausible to assume or conclude that the people of Michigan – who only approved three options regarding initiated laws – allowed for a fourth and wholly contradictory option.
Welch further posited that the text of the provision is unambiguous, and that means it must be liberally construed in favor of the people.
“Although we agree that the text is unambiguous, we find that it unambiguously provides three possible options, as discussed previously,” Welch wrote. “To the extent that one finds that Article II, Section 9 is ambiguous due to its silence as to the permissibility of adopt-and-amend, a liberal construction in the people’s favor surely cuts against that fourth option. Construing Article II, Section 9 in favor of the people requires that we not allow the Legislature to sidestep the people’s reserved power.”
Undermining that reserved power would strike a blow to the heart of direct democracy and the very reason why the power was reserved in the first place, she said.
“Michigan voters reserved the initiative power to themselves to make government more responsive to the people. Until 1908, Michigan did not allow initiatives or referenda in any capacity,” Welch wrote. “In the early 20th Century, however, voters across the country grew tired of unresponsive and corrupt state legislatures. To gain a more responsive government, Michigan voters demanded direct democracy powers.”
The 1908 Constitution only allowed for the Legislature to place a bill on the ballot, while the amended 1913 Constitution allowed for citizen petitions because there was a sense that the legislative-sponsored initiatives were insufficiently responsive.
Initiated law processes grew stronger out of the 1963 Constitution, with the constitutional convention adding provisions to remove overly technical language.
“It appears that contemporaneous observers understood that adopt-and-amend is impermissible,” Welch wrote, looking to history in addition to constitutional construction. “We find that the record of the constitutional convention supports our holding. Delegate Downs, for example,
emphasized that the framers ‘wanted to guard against … a situation where the people go to all the effort of an initiative campaign, which is hard work, win it, and then have the Legislature by a 51 percent vote reverse it.’ … His comments demonstrate that neither the framers nor the ratifiers could have envisioned the Legislature rejecting an initiative’s key proposals while sidestepping the will of the people.”
Welch said those considerations should make clear why no Legislature, up until the 2018 controversy, had attempted such a scheme.
“Indeed, by attempting to both reject an initiative and sidestep the people, adopt-and-amend impermissibly ‘thwarts’ the power that the people reserved for themselves,” she added. “As we have held, the people’s reserved power under Article II, Section 9 must ‘be saved if possible’ from ‘evasion or parry by the Legislature.’”
Welch also called foul on the argument that the Legislature has plenary power that allows it to “do anything which it is not prohibited from doing by the people through the Constitution.”
“That argument lacks merit. To start, it conflicts with (past precedent). The Constitution does not expressly prohibit adopt-and-repeal. Nevertheless, despite the Legislature’s Article IV powers, we held that the Legislature may not employ an adopt-and-repeal scheme,” she wrote. “Moreover, as discussed earlier, the people reserved the power of the initiative to themselves. Accordingly, to the extent that the Legislature’s lawmaking power is plenary under Article IV, that power does not apply to the initiative, which is a right reserved to the people. By reserving the initiative power to the people, the Constitution limits the Legislature’s role with respect to initiatives to the powers expressly conferred upon it.”
In terms of remedies, and as it relates specifically to the minimum wage increase, Welch said the original unamended Wage Act established a gradual phase-in period, and appropriate remedy would also include a gradual increase over a similar period.
“To fashion an appropriate remedy that reflects the original initiative’s purpose, we hold that a gradual phase-in mirroring the structure of the original Wage Act is most consistent with the Wage Act’s intent,” she wrote. “Accordingly, we adopt a remedy that links wage increases to the same annual schedule as originally proposed, but set into the future, starting on the effective date of this opinion.”
Bolden, in a concurring opinion, agreed with the majority, but wrote separately to express her disappointment that “although petitioners followed the initiative clause of the Constitution to a tee, the issue somehow evaded the fundamental constitutional guarantee of placement on a ballot.”
“After all, that was the alternative that was given if the Legislature chose to reject the initiative’s proposed legislation,” Bolden wrote. “However, at this point, this solution, too, would seem to defy the language of the Constitution itself and thus would be inadequate. Further, if the Legislature chose not to enact a proposed initiative, both options available to the Legislature involved placing the issue on the ballot for majority approval at the ‘next general election.’”The next general election would have been the 2018 contest, and not the 2020 contest after it.
“The initiative petition to which we now give our consideration, without dispute, met all statutory criteria to be on the 2018 ballot, including approval by the Board of State Canvassers. However, this initiative petition has not met any of the statutory criteria or received any of the necessary approvals to be on the ballot for the upcoming general election,” she added. “The Constitution does not appear to authorize us to remedy the situation in this case through the means seemingly intended – by placing it on the ballot.”
—————
Dissent argued that the scheme was permissible
The conservative justices would have ruled otherwise. In dissent, Clement wrote that Article VI, Section 1 vests the Legislature with the power to amend existing laws.
“And it has always been understood that the Legislature’s power under (the Constitution) is limited only if the Constitution expressly says so. Article II, Section 9 is silent about whether the Legislature may amend a law proposed by initiative petition that the Legislature has enacted, yet the majority concludes that the Constitution restricts the Legislature from amending a law proposed by initiative petition in the same legislative session – but, curiously, not later sessions.”
Although Clement said there was certainly reason to feel frustrated by the Legislature’s actions in 2018, which enacted a proposed initiative to avoid ballot approval only to substantially alter it, nothing in Article II, Section 9 restricts the legislative branch from doing just that.
“And as tempting as it might be to step into the breach, this court lacks the power to create restrictions out of whole cloth,” Clement wrote. “That power remains with the people, as our Constitution dictates.”
Although Zahra joined Clement’s opposition to the majority holding, he wrote separately to level his own punches against Welch’s opinion.
“Despite the extensive authority of the Legislature to enact statutes in the public interest absent narrow constitutional limitations, despite the complete lack of constitutional language preventing the Legislature from amending an adopted initiative, despite the extensive constitutional record supporting the Legislature’s ‘full control’ over adopted initiatives, and despite the total absence of caselaw limiting legislative prerogatives when the text of Article II, Section 9 is otherwise silent, the Court declares amendments to the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act unconstitutional,” Zahra wrote. “In so doing, it does not hold that adopt-and-amend is unconstitutional; it cannot so hold given the text of the Michigan Constitution and considering the effective functioning of a constitutional system.”
Instead, Zahra said, the majority superimposed a new requirement on the Constitution and abrogated “with precision” the legislation enacted in 2018.
“In the process, the majority opinion leaves later Legislatures free to adopt and amend as they please under this court’s newly devised guideposts. Given the majority opinion’s novel and legally unsupported ‘same legislative session’ rule, and the attendant conclusion that the laws at issue are unconstitutional, the court is now left in a quandary. Generally speaking, in those rare instances when a statute is declared unconstitutional, the court closely analyzes the law to save as much of the statute from invalidity as possible. By severing unconstitutional provisions, the court preserves ‘legislative intent’ while also preventing the court from being thrust into ‘judicial policymaking or de facto judicial legislation.”
In what he called a “misinterpretation” and an “erroneous decision on the merits,” the court was now left unable to sever unconstitutional provisions.
“Instead, two statutory acts expressly and unequivocally approved by the Legislature and signed by the governor are now declared unconstitutional in toto,” Zahra wrote. “Lacking any ability to limit its holding to certain individuals or the ability to sever provisions while saving the remainder of the acts, this court has two options. It can declare the relevant statutes void, or it can revive earlier versions of the statutes in their entirety to the extent it is consistent with legislative intent.”
Zahra said the majority chose neither of these options.
“Instead, the court abrogates the statutes the Legislature chose to enact, revives the outline of laws that the Legislature rejected, and wholesale rewrites the substance of those revived laws in a manner detached from the express statutory language and guided only by what the court views as ‘equitable,’” he wrote. “Ironically, the majority opinion declares the Legislature’s attempt to adopt and amend unconstitutional, yet it uses its judicial power to revive and amend the initiative that was intended to be placed on the ballot for public consideration. In the clearest way possible, the court exercises legislative power, drafting new legislation that has never been approved by the Legislature or approved by the voters.”
Zahra added that the majority did so, “without a single vote of support from the elected Legislature or the citizens,” and “has now written the public policy of this state as to minimum wages, tipped wages, and earned sick time.”
––––––––––––––––––––
Subscribe to the Legal News!
https://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
