Livingston Today

The Michigan Supreme Court has declined to issue on opinion on the legality of the legislature's adopt and amend tactic used to pass two citizen-led initiatives.

The first of two bills would have put tipped employees under regular minimum wage rules and raised the minimum wage to $12 by 2022. The second would allow workers to earn an hour of paid sick time for every 30 hours that they work. In November 2018, the state legislature adopted these initiatives, planning to make changes later, instead of presenting them to voters. The next month, Gov. Rick Snyder approved major changes to the original initiatives, and they went into effect in March.

Lawmakers asked the court in February to determine if it was legal to adopt citizen initiatives and to later revise them in the same term and if the reworked versions of the minimum wage and paid sick leave laws were legal under the constitution.

Michigan’s Supreme Court justices wrote that the majority was not persuaded that acting on this request was the best use of the court’s discretion. 

Chief Justice Bridget McCormack and Justices Megan Cavanagh, Elizabeth Clement and Richard Bernstein voted not to issue an opinion. Justices Stephen Markman, Brian Zahra and David Viviano were in favor of issuing an opinion.

This does not mean that the issue is a done deal. There could still be a ruling if legal challenges to these two laws are filed, the court’s order read.

The bills in question were adopted during the 2018 lame duck session, and in July, Solicitor General Fadwa Hammoud argued that allowing the adopt and amend strategy to be used would create a path to work around the citizens’ initiative power.  

John Bursch represented the legislative majority in court. He said people with concerns have three options: referendum the legislature’s decision, amend the constitution to put additional limits on the legislative process or vote out the lawmakers.

Bridge Michigan reported that if these measures had gone to a statewide vote, a three-fourths vote in the legislature would be required to make changes. Adopting them before putting them to a vote allowed the Republican-led House and Senate to change the laws later, with just a simple majority.    

According to Bridge Michigan, the legislature adopted both measures, and then made significant changes to what they had adopted in the fall.

Instead of raising the minimum wage to $12 by 2022, as the One Fair Wage bill proposed, the state will increase the minimum wage to $12.05 by 2030 – eight years after the original proposal, and as MLive reports, workers who get tips will earn 38 percent of the minimum wage, $4.58 per hour, by 2030.

In the second bill focusing on paid sick leave, instead of employees having the ability to earn 72 hours of sick leave annually, employers are now required to offer 40 hours of sick leave, although businesses with less than 50 employees are exempt from that requirement. As originally written, the law would have applied to businesses with 10 or more employees.  For smaller businesses, the original proposal allowed employees to accrue 40 hours of paid sick leave in a year.

Bridge Michigan reports that when Snyder signed the revisions into law in December 2018, he said the initiatives were “well-meaning” as they were written, but could be harmful to the state’s economic recovery.

This isn’t the first attempt to challenge these laws based on how they were adopted – on Dec. 3, 2018, then-Attorney General Bill Schuette issued an opinion that said nothing in Michigan’s Constitution prohibited the “adopt and amend” procedure that is under scrutiny. In February, Attorney General Dana Nessel announced that she would consider weighing in.