The Michigan Supreme Court heard oral arguments Thursday morning over whether a legislative tactic known as “adopt and amend” went against the state Constitution.
Adopt and amend involves first adopting a ballot measure into law before it has the chance to go before voters, and then changing, or amending, that original proposal language later that same legislative session.
In this case, a Republican-led Michigan Legislature adopted two 2018 ballot measures that would have raised the minimum wage and set rates for earning sick leave into law. The move kept the measures from going before voters since they were already law.
But, before the laws could take effect, the Legislature passed new laws to water down the original ballot measures.
Attorney Mark Brewer represents the groups behind the initiatives, Mothering Justice and Michigan One Fair Wage. Brewer told the Michigan Supreme Court the initiative process would essentially end if “adopt and amend” continues.
“The Legislature is the natural enemy of the initiative process. That’s why the initiative process was adopted, to bypass an often-hostile Legislature. If the power to adopt and amend is placed in the hands of the Legislature, they’ll use that to eviscerate the right of initiative,” Brewer said.
Throughout the trial, Brewer and his co-counsel tried to persuade justices that the state constitution’s 40-day window for lawmakers to approve or reject ballot language also banned them from further changing that language later that same session.
Ann Sherman is Deputy Solicitor General for the Office of Attorney General, which had lawyers argue on both sides of the case.
“The people said if there’s going to be a change, if this Legislature looks at this law and wants to change it, they’d have to propose a counterproposal,” Sherman said.
The court’s Republican-nominated justices, however, seemed skeptical.
“I’m having trouble with following the flow of the argument where if Article II, Section 9 doesn’t allow the Legislature to do something, they can’t do it. But then the flip argument that I’m hearing is but they can do it in the next section even though there’s nothing in Article II, Section 9 that says that they can,” Chief Justice Elizabeth Clement said.
On the defendants’ side of the case, attorneys argued Michigan’s constitution gave the Legislature broad discretion when it came down to passing laws.
Deputy Solicitor General Eric Restuccia argued there’s usually no problem with lawmakers passing a law and later passing another law modifying that first one in the same legislative session. He said that applied regardless of whether a policy started in the Legislature or came to it via a ballot measure.
Restuccia criticized the plaintiffs’ argument.
“Advocates here are suggesting there’s a limit and there’s not. That just doesn’t exist. Article IV gives the Legislature this authority. It has not been limited in Article II. That’s the end of the question,” Restuccia said.
Another main theme of the day came down to what voice citizens would have in the petition process if an unfriendly Legislature could thwart any ballot measure it didn’t like.
In terms of practicality, Justice Richard Bernstein asked what’s to stop people from losing faith in the process.
“When you’re talking about this as it pertains to people’s perception, confidence, faith, and trust in governance, does the scheme, does the practice, does what happened fit, really, the general perspective of letting the people have their day?” Bernstein asked.
Restuccia replied yes, giving examples of situations he said the constitution’s framers wouldn’t have accounted for.
He and his co-counsel, David Gerville-Reache, who represented the Michigan Manufacturer’s Association as a third party to the case, argued voters could have undone the Legislature’s changes to the policies if they wanted to by using the referendum process.
“If [the plaintiffs] had actually used that power that they have, we would not be here today. We wouldn’t need to be because it would have dealt exactly with the problem that we’re now wrestling with,” Gerville-Reache said.
Both inside and outside the court room, supporters of the original ballot proposals said they felt it would be unreasonable to ask petitioners to go back and collect more signatures to get their policies passed.
DeWayne Wells is executive director of the Economic Justice Alliance of Michigan.
“If the will of the people is being subverted, then why should they have to go back and again incur the hours and hours of signature gathering, and recontacting, and human resources that it takes to get that done,” Wells said.
Aside from the constitutionality of adopt and amend itself, the stakes of the case could determine the outcome of Michigan’s minimum wage and sick leave accrual laws.
The original ballot language would have phased in a minimum wage increase. But the plaintiffs are arguing for catching up to where they would have been, if the bills had stayed in their original form, at over $13 per hour. That’s regardless of a worker’s tipped status.
The state’s current minimum wages are set to be $10.33 an hour next year, with minimum tipped wages at $3.93.
Some restaurant industry workers have been organizing against the jump.
John Sellek is spokesperson for the group Save MI Tips. He said the defense made compelling arguments in Thursday’s hearing.
“Today’s oral arguments made clear there is a distinct legal difference between disliking the approach the legislature took, or even the policies it pursued, and declaring that action unconstitutional,” Sellek said in a press release.
Meanwhile, the sick leave accrual law would let small business workers earn an hour of sick time for every 30 worked, up to 40 paid hours a year and 72 total.
Other employees could get up to 72 paid hours.
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