State lawmakers on Wednesday adopted two proposals ‒ to raise Michigan’s minimum wage and require employers to offer paid sick leave ‒ keeping them off the November ballot and setting up a post-election legal battle should the GOP-controlled Legislature try to sabotage the measures before session ends in December.
Supporters of the ballot proposals, namely committees that sought to place them before Michigan voters in November, say they fear Republican lawmakers passed the laws with the intention of later killing them. They contend, and Republicans do not deny, that lawmakers could try to subvert the measures in lame-duck session after the general election — in violation of the wishes of hundreds of thousands of voters who signed petitions to get the minimum wage and sick leave proposals on the ballot.
Senate Majority Leader Arlan Meekhof, R-West Olive, did not tip his hand after Wednesday’s vote.
“We’ll consider different options and a whole suite of things we think are more friendly to Michigan, to make sure that workers are indeed cared for, and that still provide for economic development moving forward,” Meekhof told reporters, according to The Detroit News.
House Speaker Tom Leonard, who voted to adopt both proposals, told reporters after the vote that Republicans in the House have “no guarantee, no plan” to amend the proposals after the November election.
He also didn’t rule it out, saying that he believes the Legislature would have clear authority to amend the proposals this session “if we wanted to have that conversation.”
“I believe both are very poorly written. I believe they can be made better,” Leonard told reporters, adding that he would tell ballot committees that the Legislature did their jobs in adopting proposals citizens send them.
“I personally wanted to make certain that (the) Legislature was still going to have a say.”
Michigan One Fair Wage, the ballot committee pushing the minimum wage proposal, “declared victory” in a statement Wednesday, even as it vowed to protect the initiative from future changes if they go against the initiative’s intent. This group, and others, contend that any effort to pass-and-kill a citizens’ ballot initiative would be struck down in court.
“We are well aware of legislative leaders’ intent in adopting this measure,” campaign manager Pete Vargas said, adding that the group will work on encouraging voter turnout in November.
“We can declare victory now because there is no legal way to amend the legislation this year.”
Mark Brewer, an attorney representing the ballot committees, was blunt about his strategy: “If the Legislature adopts this proposal and in any way amends it in lame-duck, we will sue.”
The proposals that Michigan’s Senate and House adopted Wednesday would gradually raise Michigan’s minimum wage to $12 an hour by 2022, including for tipped workers — brought by a ballot committee called Michigan One Fair Wage — and would require paid sick leave for employees — brought by a ballot committee called MI Time to Care.
Both groups gathered hundreds of thousands of signatures to put their proposals to statewide voters in November. Supporters say the initiatives are designed to help move Michiganders up the economic ladder. Critics of the proposals, largely business groups, say they would place an undue burden on employers.
“We are grateful to the Legislature for taking action on issues impacting jobs and the competitiveness of Michigan’s business climate,” Mike Johnston, vice president of government affairs for the Michigan Manufacturers Association, said in a statement. “As with all other laws pertaining to business, it is important to keep policy making within the hands of the policymakers. If there are provisions in these proposals that would harm or reverse Michigan’s economic comeback, we need to be able to address them at the legislative level.”
The state Senate approved both proposals by 24-13 margins, while they cleared 78-28 in the House.
While the state constitution gives the Legislature the first shot at approving legislation proposed by citizens, backers of both proposals say Republicans in the majority are attempting to circumvent the intended ballot process by adopting the proposals with the intent to amend them later.
“Now our job is to make sure (Republicans) don’t gut them in lame duck,” said House Democratic Leader Sam Singh, who voted to support both proposals. “We’re going to make sure that they are held accountable through this whole 10-week election process. We want to make sure that those Republicans make a commitment, and if they don’t, we’re going to ask the voters to kick them out of office.”
The Legislature needs just a simple majority to later change bills it adopts. If voters were to pass the measure in November, however, the legislature then would need to muster a three-quarters majority to make any changes — a significantly higher hurdle.
At issue in the debate is whether the Legislature has the authority to adopt and amend legislation proposed by Michigan citizens in the same legislative session.
Brewer, the lawyer for the proposals, cited a 1964 opinion written by then-Michigan Attorney General Frank Kelley, who argued that “it is equally clear that the legislature enacting an initiative petition proposal cannot amend the law so enacted at the same legislative session without violation of the spirit and letter of” the state constitution.
“It’s very clear that adopt-and-amend violates the constitution,” Brewer told reporters this week. He added that since lame-duck session occurs after the November general election, many term-limited lawmakers no longer will have to face voters.
Not so, argued attorneys from Honigman Miller Schwartz and Cohn LLP in Lansing in a memo for Michigan Opportunity, a group largely backed by restaurant owners and operators, which opposes the minimum wage proposal.
Calling Kelley’s 1964 opinion “clearly incorrect,” Michigan Opportunity’s attorneys argue that the state constitution “does not impose any limitations on the circumstances under which an initiative enacted by the Legislature may be amended, because no such limitations apply.”
“This is because once the Legislature enacts an initiative, it is on the same plane as any other legislative enactment, subject to the same requirements for any other legislative amendment — no more and no less,” they wrote.
The Board of State Canvassers in August voted to certify the minimum wage proposal, following a Michigan Court of Appeals decision ordering the board to do so. Michigan Opportunity requested an emergency ruling from the Michigan Supreme Court. A decision from the state’s high court has yet to be issued.
The One Fair Wage proposal would raise the state’s minimum wage to $10 in 2019 and $12 by 2022, including for restaurant workers and other employees who receive tips. Today, those workers earn far below minimum wage.
Michigan’s minimum wage is $9.25 per hour, though tipped workers earn $3.52 per hour before tips. Employers are required under state law to make up the difference if tips plus wages don’t equal the minimum rate.
State canvassers in July certified the paid sick leave proposal, backed by MI Time to Care. The proposal would allow Michigan workers to accrue paid sick leave for themselves and to care for family members, including in situations of domestic violence and sexual assault.
Employees could earn at least one hour of paid sick leave for every 30 hours worked under the proposal, up to 72 hours per year. Employees who work for small businesses, or those with fewer than 10 employees, could accrue up to 40 hours of paid leave each year and another 32 hours of unpaid sick leave.
“We know, just as legislators know, that voters across Michigan approve of the policy as written,” Danielle Atkinson, founding director of Mothering Justice and chairwoman of MI Time to Care, said in a statement. “Our job now is to make sure the Legislature does not cave to lobbyists and special interests and use the lame duck session to weaken the law it passed today.”
Michigan has no requirement for paid sick leave on the books.
The effort is opposed by a coalition called Small Business for a Better Michigan, which consists of the Small Business Association of Michigan, the National Federation of Independent Business, the Michigan Manufacturers Association, the Michigan Restaurant Association and other business groups.
The state has until Friday to finalize ballot language for the Nov. 6 election. These proposals will not appear on the ballot.