Republican state lawmakers plan to ask the Michigan Supreme Court to decide whether the changes they made last year to citizen-backed minimum wage and paid sick leave laws were legal.
The GOP majorities in both the state House and Senate will consider resolutions as soon as Wednesday to ask the state’s high court to issue an opinion about the laws’ constitutionality, as well as whether the Legislature is allowed under the state constitution to adopt a citizen petition and change it in the same two-year term.
The request would sidestep the traditional litigation process — the request is for a court opinion without first filing a lawsuit — and follows a Democratic state senator’s request last week to have new Democratic Attorney General Dana Nessel weigh in on the same questions.
Legislative Republicans continue to maintain that they are on solid legal ground, despite criticism from ballot committees that wrote the original legislation and Democratic lawmakers, who say Republicans kept the proposals off the ballot in order to gut them in the lame duck session that ended in December.
Delays caused by litigation and the continued legal questions about the minimum wage and sick leave laws passed by Republicans will create an uncertain environment for business owners, restaurant servers and Michiganders in general looking to comply with the legislation when it takes effect next month, said state Rep. Triston Cole, R-Mancelona, who introduced the House resolution Tuesday.
“For political expediency, and to resolve this as soon as possible, let's go straight to the Supreme Court,” Cole said. “I'm very confident that the action that we took (last term) is constitutional, is legal. That's why I'm willing to jump directly to the Supreme Court.”
A nearly identical resolution is expected to be introduced and adopted in the state Senate on Wednesday, said Amber McCann, a spokeswoman for Senate Majority Leader Mike Shirkey, R-Clarklake.
Supporters of the original proposals say they are confident, too, that the law is on their side.
"We believe the scheme to adopt and amend earned paid sick time was a clear violation of Michigan's Constitution,” Danielle Atkinson, co-chairwoman of the MI Time to Care ballot committee that wrote the paid sick leave law, said in a statement Tuesday. “We are confident that the law is on the side of the people who have the right to use the ballot to enact popular proposals such as earned paid sick time.”
Alicia Renee Farris, state director of the Restaurant Opportunities Center of Michigan and a chairwoman of the Michigan One Fair Wage steering committee, issued a statement late Tuesday that read: "Gutting the One Fair Wage proposal during lame duck was an unconstitutional move that tramples democracy and undermines the rule of law. We are confident the rule of law will be upheld and the voices of the 400,000 Michiganders who supported the One Fair Wage proposal will be heard.”
The state constitution gives the Legislature and the governor the ability to ask the state Supreme Court for an opinion on whether laws are constitutional. The window for doing so expires before the law takes effect. In this case, the minimum wage and sick leave laws that the Legislature changed take effect March 29.
Advisory opinions are not considered to be precedent, unlike opinions issued by the court as part of litigation. They’re also not common, legal experts said.
The last time the court agreed to issue an advisory opinion was in 2011, when the majority of the high court agreed that former Republican Gov. Rick Snyder’s first-term tax overhaul that included new taxes on some retirement income was constitutional, according to state Supreme Court spokesman John Nevin.
The most recent request came in 2016, when Snyder sought an advisory opinion from the Supreme Court as to whether it was legal for the state to use $2.5 million in taxpayer dollars to reimburse private schools for the cost of complying with state requirements.
The court denied Snyder’s request, writing in its order that “we are not persuaded that granting the request would be an appropriate exercise of the Court’s discretion.”
While the state Supreme Court is allowed to issue advisory opinions, “the court is not required to do so, and very rarely does,” said Robert Sedler, a constitutional law professor at Wayne State University Law School.
“I don’t think the court is going to do it,” he added. “At some point, the matter’s going to get litigated, one way or another.”
Nevin said via email the court has no deadline to decide whether it will issue an opinion, but that “the Court treats requests for advisory opinions as priorities given that the effective date of the statute is probably in the very near future.”
The Legislature last fall adopted citizen-initiated proposals to raise Michigan’s minimum wage to $12 an hour by 2022 and require employers to offer 72 hours of paid sick leave, and later revised them before the two-year legislative term ended in December. The strongest provisions were softened so that Michigan’s minimum wage now will reach $12.05 by 2030, and employers are required to offer 40 hours of sick leave, while exempting businesses with fewer than 50 employees from the sick leave law.
Republicans and business groups argued the laws as written by advocates working to get them on the November ballot were too onerous. Snyder, who signed the Legislature’s revisions into law in December, said at the time that the citizen-backed proposals were well-meaning, but would have harmed the state’s economic recovery if they weren’t changed.
“Our state laws impact the daily lives of every Michigander,” Shirkey said in a statement Tuesday. “The Senate and House would rather take this constitutional question directly to the justices and see swift action than wait out a protracted legal dispute.”
GOP legislators sought an opinion from former Attorney General Bill Schuette, a Republican, who said the state constitution does not prevent the Legislature from taking such action.
Schuette’s opinion supersedes a 1964 opinion from former Democratic Attorney General Frank Kelley, favored by advocates of the citizen proposals, which found the opposite.
Last week, state Sen. Stephanie Chang, D-Detroit, asked Nessel, who took over as Attorney General in January, to issue an opinion on the question. Nessel has not said whether she will issue an opinion, but is evaluating Chang’s request. Her office has asked for public input through early March.
“We are continuing to move forward with the opinion request and will do so unless the Court accepts the legislature’s request,” Nessel spokeswoman Kelly Rossman-McKinney told Bridge via email.
Chang could not immediately be reached for comment Tuesday, but told Bridge last week that Michiganders need to know what version of the law will take effect next month and whether future ballot measures could be changed by lawmakers in the same way.
“It’s really important for residents to know what is their right and what is the process moving forward, because we have this process for residents to initiate petitions and citizen-initiated laws,” Chang said. “If the work that they do can just be overturned within a matter of weeks or months, that’s a problem, and so we just want further clarity for residents.
- Feb. 4: In one month, Dana Nessel erases many of Bill Schuette’s federal pursuits
- Jan. 31: Michigan Democratic leaders Whitmer, Nessel and Benson working in concert
- Dec. 14: Snyder signs bills that weaken Michigan minimum wage, sick leave laws
- Dec. 4: Opinion | Gutting paid sick leave disrespects voters, undermines democracy
- Dec. 3: Group behind Michigan paid sick leave vows 2020 ballot drive if law gutted
- Nov. 27: Michigan Republicans aim to soften minimum wage, sick leave in lame duck
- Oct. 31: Opinion | Healthy workers will keep the Michigan economy growing
- Oct. 18: Servers want $12 an hour. This restaurant owner says he can't afford it.
- Oct. 18: Paid sick leave law making some Michigan businesses feel queasy