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Michigan Court of Claims Declares “Adopt and Amend” Unconstitutional

Yes or No Ballot ProposalOn July 19, 2022, in Mothering Justice et al. v. Nessel, the Michigan Court of Claims declared the legislative practice of “adopt and amend” unconstitutional under Article 2, § 9 of the Michigan Constitution.

Under the Michigan Constitution, an issue can become a statewide ballot proposal through several different mechanisms. The ballot initiative is one of those items and the issue in Mothering Justice. When Article 2, § 9 was adopted in 1963, it reserved the people the power to propose, enact, and reject laws through the initiative process. Under Michigan Election Law, 1954 PA 116, citizens can petition to get a question on the ballot for three reasons: to enact a new law, approve or reject an existing law, or amend the constitution. To do this, the citizen or group must obtain signatures from registered electors of not less than eight percent of the total vote cast for all candidates for governor in the last gubernatorial election.

In 2018, two initiatives were circulated, one to raise the minimum wage to $12 an hour, including tipped employees, and the other to set rates for accumulated paid sick time. Before the initiatives were put on the ballot, the Legislature passed The Earned Sick Time and Improved Workforce Opportunity Wage Acts. Shortly after that, in a lame-duck session, the Legislature amended both acts, now known as the Improved Workforce Opportunity Wage Act. The amended Act significantly weakened the initial purpose. In May 2021, several groups brought a petition directly to the Court of Claims, challenging the constitutionality of the Improved Workforce Opportunity Wage Act. The Court agreed to hear the plea.

In its ruling, the Court found that the enacting and amending of the Acts during the same legislative session violated the purpose of Article 2, § 9 and would “thwart the power of the People to initiate laws and then vote on those same laws—a power expressly reserved to the people in the Michigan Constitution.” The Court found that under Article 2, § 9, the Legislature has only three options, adopt the initiative as presented, reject the petition, or propose a new alternative law. The Michigan Constitution does not allow the petition to be adopted and then amended without the say of the people.

The Court looked at precedent from several cases when Article 2, § 9 was enacted. These cases look at the spirit and long history of the Michigan Constitution, voters’ rights, and the Article itself. The court first looked to Article 1, § 1 which states, “All political power is inherent in the people. Government is instituted for their equal benefit, security, and protection.”

In its analysis, the Court looked at the plain meaning finding the provisions of the amendment made clear that an initialed law “cannot be subject to amendment until after the referendum period has run.” And further that an initiated law can only be repealed by another election vote or ¾ majority of the Legislature or may be amended by the legislature at any subsequent session, which did not happen in this case. Looking at the history of the amendment, the Court found that statements made by Delegate Kuhn during the adoption of the amendment were instrumental to the idea that the Legislature’s options were either to adopt or reject the proposed law or propose an alternative statute for the voters to decide and not to amend themselves.

In the end, the Court’s decision will require the original laws as adopted by the electorate to be reinstated. However, the Court also issued a stay of the order for 205 days, until February 19, 2023. This gives the parties time to appeal the decision and gives employers time to prepare for a change in the law. Once in effect, Michigan employers will be required to pay a minimum wage of $12 per hour, including those receiving tips and to provide paid sick leave.

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