Advance Notice: Briefs

Gov. files brief opposing Legislature’s 2018 move to ‘adopt and amend’ petitions

By: - June 19, 2019 5:40 pm

Gov. Gretchen Whitmer | Susan J. Demas

Updated, 8:16 p.m. with brief from Democratic legislators

Gov. Gretchen Whitmer’s office filed a brief today opposing the “adopt and amend” maneuver the GOP-led Legislature used in 2018 to enact weakened versions of minimum wage and sick leave laws that otherwise would have been on last November’s ballot.

The brief from Whitmer’s attorneys to the state Supreme Court says that the amendment process itself is unconstitutional, and that, therefore, the two laws in question are unconstitutional as they currently stand.

Michigan Supreme Court to hear sick leave, minimum wage case

Those attorneys, Mark Totten and Philip Mariani, wrote that the process was “an unprecedented power grab, plain and simple, and an affront to the rule of law.”

Whitmer said in a statement Wednesday that “we need to respect [voters’] wishes. … We must end the unconstitutional games that the Legislature has been playing with voters. Today’s filing gets us one step closer to restoring the public’s trust in state government.”

Through Michigan’s ballot-initiative process, if a petition drive reaches a certain number of signatures it may be adopted by the Legislature and passed into law by a simple majority. That does not require the governor’s signature.

In 2018, the Legislature did so in the case of the minimum wage and sick leave laws. Then in Lame Duck, the Legislature decided to amend and water down those laws, which has never happened before. That legislation was signed by GOP Gov. Rick Snyder.

Snyder signs neutered minimum wage, sick time bills

“The amicus brief concurs with Attorney General Dana Nessel’s position that this ‘adopt and amend’ maneuver is unconstitutional because it removes the people’s power to propose and enact statutes through public initiative,” Whitmer said in a statement.

A total of 62 Democratic lawmakers, led by House Minority Leader Christine Greig (D-Farmington Hills) filed a brief that they “believe that the lame-duck Legislature violated the Constitution” by passing the amended minimum wage and paid sick leave laws. Sam Bagenstos, a 2018 Democratic-nominated Supreme Court candidate, was the lead attorney.*

Thirteen groups signed on to another amicus brief against the move, which included Progress Michigan, Mothering Justice and the American Federation of Teachers Michigan.

A protestor demonstrates during a Dec. 12, 2018, rally in the Capitol | Ken Coleman

The nonprofit group Voters Not Politicians, which spearheaded Proposal 2 of 2018 establishing an independent redistricting committee, also filed a brief in opposition.

“It is clear these laws were passed with the specific intent of denying voters the right to have their say at the ballot box so politicians could gut them during lame duck when they were not facing down the barrel of an election,” said Director Nancy Wang.

In an earlier brief filed on behalf of the Republican-controlled Legislature in support of the process, attorneys Andrea L. Hanson and Doug Mains argued that amending ballot measures is fully consistent with the Michigan Constitution, “meaning [the Legislature] can amend or repeal such law at any time with a majority vote.”

Oral arguments before the Michigan Supreme Court, which currently has a Republican majority, will be heard on July 17.

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Derek Robertson
Derek Robertson

Derek Robertson is a former reporter for the Advance. Previously, he wrote for Politico Magazine in Washington. He is a Genesee County native and graduate of both Wayne State University, where he studied history, and the Medill School of Journalism at Northwestern University.