Added on July 22, 2019  Sara Swanson

Michigan Supreme Court hears debate on minimum wage, sick leave laws

by Lindsay VanHulle (Bridge)

LANSING—At the Michigan Supreme Court on Wednesday, an attorney defending actions by Republican lawmakers to weaken citizen-initiated laws to raise the minimum wage and require paid sick leave was asked if he could explain why legislators did it.

Attorney John Bursch said he couldn’t answer for certain, though he offered a theory: The GOP-led Legislature recognized that the measures, which had gathered enough signatures to be placed on the ballot last November, would lead to job losses. So they decided that the best outcome for all Michiganders ‒ not just those who signed ballot petitions ‒ was a compromise that limited wage and sick leave benefits as a way to save jobs.

Bursch, representing House and Senate Republicans who weakened the proposals, was among several attorneys to argue Wednesday before the state’s high court. The seven justices are considering whether to issue an advisory opinion on the legality of the GOP maneuver: Republican lawmakers adopted the two progressive wage and sick leave proposals last September before the proposals could go to a statewide vote in November. Lawmakers then essentially gutted both measures in December’s lame-duck session, mostly along party-line votes.

Much of Wednesday’s court debate focused on whether that tactic violated both the text and the spirit of the state constitution, which allows citizen groups to put proposed laws on a statewide ballot if they are able to gather enough popular support for the issue.

The Supreme Court doesn’t have to issue an advisory opinion, and even on Wednesday did not make clear whether it will do so. Should justices decide to write one, their opinion could be out by the end of July, when the court’s calendar ends for the year, though a spokesman said it’s uncertain whether that deadline applies to advisory opinions. Whatever they decide, future litigation remains a possibility. 

What is clear is that groups on both sides of the wage and sick leave debate desire a resolution to the ongoing uncertainty — for employers, the need to know which version of the laws will stand as they rework their wages and benefits; for ordinary workers, who want to know what wages and benefits they can expect; and for activists interested in using the citizen initiative process, who ask whether going through the hard and expensive work of getting issues on the ballot can be upended by an unfriendly Legislature.

The justices didn’t indicate how they might decide the controversy, asking pointed questions of attorneys on both sides. The court currently has four justices nominated by the Republican Party and three nominated by Democrats, though at least two of the GOP-nominated justices have voted with colleagues with Democratic ties.  

Justice Megan Cavanagh, a Democratic-backed justice first elected in November, asked Bursch why Republicans waited until after the November election to delay future  increases to the minimum wage law and limit earned sick leave. Cavanagh asked why lawmakers did not put their own, more business-friendly versions of the measures on the November ballot alongside those proposed by labor-supporting groups. That way, voters could decide for themselves which proposals were in the state’s best interest.

It’s possible, Bursch responded, legislators didn’t fully realize the economic implications of adopting the proposals until after they passed them, once employers shared concerns about potential fiscal consequences.

Cavanagh was skeptical, asking: That realization only became clear a couple days after the election?

“The lobbyists move really fast, Your Honor,” Bursch replied, as spectators chuckled.

The Legislature adopted the minimum wage and sick leave proposals in September, though Republicans didn’t introduce revisions until two days after the Nov. 6 general election, when many lawmakers were now term-limited out of office and GOP leaders still had an ally in the governor’s office, Republican Rick Snyder. (Snyder signed the changed laws shortly before leaving office.)

The legal question was whether the Michigan Constitution allows the Legislature to change citizen proposals in the same two-year legislative term. Under the constitution, lawmakers can adopt citizen-initiated legislation before it goes to the statewide ballot, which is precisely what Republicans did last September. Whether they could then turn around a few weeks later and undermine those same laws is what brought the parties to the courtroom Wednesday.

Under the GOP-backed laws passed in lame-duck session last year, Michigan’s minimum wage hike slowed from $12 by 2022 to $12.05 by 2030. Employees who qualify for sick leave benefits also will be allowed to accrue up to 40 hours of paid time off a year under the Republican changes, rather than up to 72 hours of sick time under the citizen-initiated law. The Republican-amended law also exempts many smaller companies from being required to offer paid sick leave.

Here are key areas of argument at Wednesday’s court hearing: 

Argument: Because Michigan’s constitution is silent on the so-called adopt-and-amend strategy, the practice is allowed

The section of the Michigan Constitution on citizen initiatives says the legislature has 40 days to adopt a citizen-backed proposal as written. If the Legislature does nothing, it goes to a vote of the people. 

Republican lawmakers, as well as most of the state’s business establishment, did not think much of either proposal, seeing them as threatening the economic progress the state had made since the Great Recession.

Lawyers for Republican lawmakers noted Wednesday that nowhere in that section of the constitution does it spell out when the Legislature can change laws proposed by citizens and adopted by lawmakers.

That’s on purpose, these lawyers argued.

“When the Legislature or the people use words in one place but not in another place, we have to assume that silence is intentional,” Bursch said.

If the framers of the state’s constitution, drafted in 1963, wanted to limit the Legislature to a particular time period when it could rewrite citizen legislation, he argued, they would have done so. 

Voters have remedies if they’re unhappy with legislative changes, attorneys defending the lame-duck changes argued, including calling a referendum on those changes and electing different legislators in the next election.

But several justices questioned whether constitutional drafters from the 1960s would have envisioned the tactics used to weaken the minimum wage and sick leave laws proposed last year.  

“Could the people have imagined this particular application of [the constitution], you think they really would have thought, ‘Yep, this is one of the things we had in mind?’” asked Chief Justice Bridget McCormack, a Democratic-backed justice.

Bursch’s theory about the Legislature’s rationale for revising the laws would make more sense if the changes happened prior to the November election, rather than days after, McCormack said.

Legislators could have argued immediately they didn’t want Michiganders to lose their jobs as a result of both proposals, she said, and voters could have judged legislators’ decision at the same election last November.

“Of course they could have done it before the election,” Bursch replied. “The point that I’m trying to make is nowhere in the constitution does it draw that line anywhere.”

Argument: Adopt-and-amend puts Michigan’s citizen initiative process in peril

The framers of Michigan’s constitution carved out political power for the people to serve as a check on the Legislature, attorneys representing the two ballot committees that originally proposed the more generous minimum wage and paid sick leave proposals and Democratic lawmakers who opposed the revisions argued.

That citizen initiative process is imperiled if the state’s highest court allows the adopt-and-amend strategy to stand, state Solicitor General Fadwa Hammoud said in arguing that the practice is unconstitutional.

(The Supreme Court asked Attorney General Dana Nessel’s office to argue both sides of the issue. State Deputy Solicitor General Eric Restuccia argued in support of the laws’ constitutionality. Nessel, a Democrat, signed on to a brief arguing that the laws and adopt-and-amend process both are unconstitutional.)

“Really, what is the point of [the initiative provision] if adopt-and-amend is held up as precedent? It would nullify the provision,” Hammoud argued.

“This would create a permanent escape route for the Legislature” to avoid allowing citizen-initiated proposals to be decided at the ballot, she said. “That is not the way anyone with common sense would undergo constitutional analysis.”

Mark Brewer, an attorney for the Michigan One Fair Wage and MI Time to Care ballot committees, noted that the constitution gives the Legislature leeway to challenge citizens’ initiatives it disagrees with: Republicans could have allowed the proposals to go to the ballot and put their own, alternative versions on the ballot beside them. Brewer said the only reasonable interpretation of that provision is that the framers gave the Legislature explicit powers and reserved the rest for the people.

McCormack asked whether a small, technical change is permitted to a citizen-backed law, such as to correct a citation that doesn’t change the substance of the original proposal. 

Brewer said he interpreted the constitution as not giving the legislature power to make any changes during the same legislative session, even technical changes.

Hammoud disagreed, saying it would not be inappropriate to amend legislation for technical reasons so long as it didn’t affect the substance of what citizens wanted.

Justice David Viviano, a Republican-backed justice, took a different tack, suggesting that if the constitution’s drafters wanted to restrict the timing of legislative changes, they would have done so. 

“Why shouldn’t we think that they thought very carefully about putting in the very precise limitations” being discussed, he asked. 

An uncertain future

The Michigan Supreme Court does not have to issue an advisory opinion, and in fact rarely does, according to the court.

Requesting an advisory opinion of the state’s top court is a power granted to the governor and the state House and Senate under the Michigan Constitution. It’s done outside the typical litigation process. Such a request is allowed after a law has passed, but before it takes effect.

The GOP-led Legislature in February asked for the court’s opinion; the minimum wage and sick leave laws took effect in March.

In the past, when the court has declined to issue opinions, it mostly was because the issues were not considered imminent nor important, said Justin Long, an associate law professor at Wayne State University Law School.

“Here, all of the facts and arguments necessary for the Court to make a good decision are in final form, ready for analysis, and the issue will have a substantial effect on the Michigan economy one way or the other,” Long wrote Bridge via email. “So at least the key ingredients for an advisory opinion are present. Of course, it’s always a subjective decision by the Justices to decide whether it makes sense for them to opine or not.”

The Supreme Court has not signaled whether it will write an opinion. If justices punt, Nessel could revisit the debate after previously declining to release her own opinion while the court’s review was ongoing.

An advisory opinion is not considered to set precedent the way a court decision that resulted from a traditional lawsuit does, though experts say it generally is followed. As such, the possibility remains that the minimum wage and sick leave disputes ultimately are resolved through litigation, though that process could take longer.

“Litigation is an awkward way to resolve this dispute, because if the workers are right, the employers will be hit with substantial losses, including not only the back wages but also interest and possibly other costs,” Long wrote. “This is one reason why an advisory opinion now might avoid trouble later. 

“But even if the Justices issue an opinion … it would have no binding effect on anyone. It certainly would give a pretty good hint as to how the Justices would vote if the issue actually came to them in a lawsuit, but such an opinion would not invalidate or confirm the amendments by itself.”

Public policy experts have said the Supreme Court’s result could spur more political action, such as through new ballot initiatives reining in lame-duck voting, for instance.

Danielle Atkinson, one of the organizers of the paid sick leave initiative in 2018, told reporters after the court hearing that all options remain on the table should the court choose not to issue an opinion. That might mean a new ballot initiative or a lawsuit.

Justin Winslow, president and CEO of the Michigan Restaurant and Lodging Association, which supported the Republican revisions last year, said the final version was a compromise that is more supportive of job providers while still raising wages and enacting Michigan’s first paid sick leave requirement.

Absent a court decision, “there’s still legal due process for the other side,” Winslow told Bridge. 

“But we have an enacted law. It has been implemented. It is the law of the land right now, it will continue to be and if that is chosen to be litigated, then that process will have to play out.”