The Michigan Supreme Court will not decide whether the Legislature’s maneuver to “adopt and amend” the state’s minimum wage and paid sick leave laws during last year’s lame-duck session was constitutional, the court announced in a 4-3 ruling Wednesday.
“We are not persuaded that granting the requests would be an appropriate exercise of the Court’s discretion,” the order read. The court will only rule if there is “actual controversy” through a lawsuit challenging the laws.
Chief Justice Bridget McCormack and justices Richard Bernstein, Elizabeth Clement and Megan Cavanagh sided in favor of not issuing an opinion. Justices Stephen Markman, Brian Zahra and David Viviano dissented, arguing that the court has the power to issue an opinion and should.
The citizen-initiated laws favored by Democrats were adopted by the Republican-dominated Legislature in September 2018 to avoid sending them to the ballot. If voters had approved the laws with a statewide vote, it would have required a three-quarters vote in the Legislature to change. By adopting the bills before voters could weigh in, lawmakers only needed a simple majority to later change the laws — something Republicans easily had in both chambers.
Last December, during a historically hectic lame-duck session, Republicans watered down the laws they passed in September, arguing that they posed a threat to Michigan’s economic recovery, particularly the viability of small businesses.
The sick leave law, as originally crafted, would have allowed workers to accrue one hour of leave time for every 30 hours worked; Republicans changed it to one hour for every 35 hours worked. A requirement for employers to offer 72 hours of sick leave per year was changed to 40. The law was also changed to only apply to businesses with more than 50 employees, rather than 10 as the original law dictated.
The minimum wage proposal would have increased the state’s minimum wage to $12 per hour by 2022, beginning at $10 per hour in March of 2019, and require subsequent adjustments for inflation. It would also have brought tipped workers’ wages up to the full minimum wage, rather than 38 percent of the minimum wage. Republicans changed the law to increase the minimum wage to $9.45 in March and $12.05 in 2030 — eight years later than the original initiative. Republicans also nixed adjustments for inflation and bringing tipped workers’ wages to the state hourly rate.
Progressive groups were outraged by the changes and argued it was an unconstitutional tactic that subverted the will of the people.
Shortly before the laws went into effect in March, Republican lawmakers asked the High Court to answer the question at the center of the controversy: Is it legal for the legislature to take up citizen-initiated legislation and later amend it within the same legislative term?
Senate Majority Leader Mike Shirkey, R-Clarklake, told reporters at the time it was “just an attempt, sincerely, to remove the uncertainty, the cloud, over the state over these two issues and allow our job makers and workers some certainty about what's going to happen.”
Then-Michigan Attorney General Bill Schuette, a Republican, issued an opinion late last year determining that the “adopt and amend” practice is legal. His opinion superseded one written decades ago by Attorney General Frank Kelley, a Democrat, who argued the opposite.
Current Democratic Attorney General Dana Nessel was asked to issue an opinion that could possibly supersede Schuette’s, but she deferred to the Supreme Court. Nessel could not immediately be reached for comment Wednesday.
A lawsuit challenging the strategy could still be brought, and the high court indicated that’s the grounds under which they’d consider ruling on its constitutionality. Alicia Renee Farris, chairwoman of the Michigan One Fair Wage steering committee, which was behind the minimum wage legislation, told Bridge Wednesday that her group “absolutely” still believes the Legislature’s amendment of the legislation was unconstitutional.
“We have to respect (the Supreme Court’s) decision, but for us it means the fight is on and continuing,” Farris said. She said the group hasn’t yet determined whether it will bring a lawsuit challenging the adopt-and-amend strategy. “We need to go back to the table and consider our options, all of our options, in terms of moving one fair wage in Michigan.”
MI Time to Care, the campaign committee behind the paid sick leave law, could not be reached for comment Wednesday.
Amber McCann, spokeswoman for Shirkey, told Bridge via email “the Senate is confident in the constitutionality of these acts. This Court’s decision not to give an advisory opinion does not change that.”
Speaker of the House Lee Chatfield has not had a chance to review the decision, spokesman Gideon D’Assandro said.
Justin Winslow, CEO of the Michigan Restaurant and Lodging Association, which opposed the minimum wage law, said in a statement that the ruling validates the group’s opinion that the adopt-and-amend strategy is constitutional.
“No ruling is a win for economic stability, opportunity and future job growth in the hospitality industry,” he said.