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RTW law and referendum just won’t mix

Michigan is one of 24 states where the public can pass judgment on the work of their elected representatives via the power of referendum.

But just as Superman’s foes found kryptonite could neutralize him, Michigan legislators have found their way to neutralize the referendum.

The majorities backing Right to Work legislation included a $1 million appropriation to execute administrative functions under the change. In the process, this appropriation nullifies the right of referendum under an interpretation of the Michigan Constitution most recently enunciated by the Michigan Supreme Court in 2001.

In Michigan United Conservation Clubs v. Michigan Secretary of State, the controlling opinion by Justice Clifford Taylor, in fewer than 250 words, explained that Article II, section 9 of the 1963 Michigan Constitution states, “The power of referendum does not extend to acts making appropriations for state institutions …”; the Legislature appropriated a sum of money with the law under challenge; and, therefore, “the power of referendum of the Michigan Constitution does not extend to 2000 PA 381.”

Excerpt from Article II, section 9

"The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required."

In a concurring opinion, then-Chief Justice Maura Corrigan wrote that the Legislature’s motivation in attaching the state funds was irrelevant. Attachment of the money meant the referendum could not be used.

Earlier this year, petitions were gathered and a vote held to pass judgment on the rewrite of the state’s emergency manager law, Public Act 4 of 2011. The voters decided to repeal this legislative product – which did not include an appropriation.

A person who has been involved in the legislative process for years said he expects referendum-proofing of bills “is going to be standard practice now if you don’t want it contested. Why wouldn’t you, if it works?”

Another bill now under consideration in the lame-duck legislative session would create a new emergency manager law – and it includes an appropriation.

The defeat of PA 4 was only the second successful repeal via voter-initiated referendum since 1963, out of a total of eight attempts.

Union officials told the Washington Post on Tuesday, though, that they can rely on the other part of Article II, section 9 to get a voter review of Right to Work.

Under the initiative process, voters can collect signatures to require the Legislature to approve or reject a measure. If the Legislature rejects it, the matter rolls to a vote of the people at the next general election. In essence, the union strategy will be to write a law that nullifies Right to Work – a referendum by default.

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