Dear Leader Brinks and Speaker Hall:
In September 2018, the Legislature adopted two citizen-initiated laws, 2018 PA 337 and 2018 PA 338 (the Wage Act and the Earned Sick Leave Act), thus removing them from the November 2018 ballot. “But following the November 2018 general election, the lame duck Legislature voted to amend the laws in a manner that dramatically altered and virtually eliminated the changes voters sought through the initiative process.” Mothering Justice v Attorney Gen, No. 165325, 2024 WL 3610042, at *1 (Mich, July 31, 2024), opinion clarified 10 NW3d 845 (Mich, 2024). When the Michigan Supreme Court was considering issuing an advisory opinion on the constitutionality of that adopt-and-amend maneuver in 2019, I represented 62 members of the House and Senate who argued that the maneuver was unconstitutional. The Court declined to issue any opinion, however. In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 505 Mich 884; 936 NW2d 241 (2019).
But last summer, the Michigan Supreme Court did decide the constitutional question. See Mothering Justice, supra. The Court concluded that adopt-and- amend “violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process.” Mothering Justice, 2024 WL 3610042, at *1. The Court explained that “[c]onstruing Article 2, § 9 in favor of the people requires that we not allow the Legislature to sidestep the people’s reserved power”; that “the Legislature’s actions in adopting the initiative petitions and then amending them in the same legislative session deprived the people of access to the process that is guaranteed to them under Article 2, § 9”; and that the Legislature thus “unduly burdened voters’ direct democracy rights through the adopt-and-amend process.” Id. at *6–7. Because the Legislature’s effort to amend the initiative it had recently adopted was unconstitutional, the Court held that “the original initiatives, as adopted by the Legislature, remain in place.” Id. at *14. And because the original initiatives “provided stakeholders with 205 days between the laws’ enactment and their effective dates,” presumably to afford employers “time to prepare to comply with these new laws,” the Court held that the original initiatives would take effect 205 days after the issuance of its opinion. Id. at *15.
Now, the Legislature is considering once again whether to enact amendments that would dilute the effect of the initiatives it adopted into law in 2018. In my view, doing so would simply compound and reinforce the Legislature’s original action to undermine the people’s power of initiative. In deciding Mothering Justice, the Michigan Supreme Court enforced a basic democratic principle—that the people have a reserved power to vote on an initiative that qualifies for the ballot if the Legislature will not let it go into effect. Under ordinary circumstances, that would mean that the Legislature must wait until the next legislative session, after an election, before amending an initiative it has adopted. But here, the Legislature’s original adopt-and-amend constitutional violation has meant that the Wage Act and Earned Sick Leave Act have been in suspended animation for years and have still not gone into effect. For the Legislature to amend these initiatives now, before letting them take effect, would be to once again “sidestep the people’s reserved power.” Mothering Justice, 2024 WL 3610042, at *6.
Sincerely,
Samuel R. Bagenstos