Seeking to avoid a lengthy legal fight, Republican lawmakers on Wednesday asked the Michigan Supreme Court to rule on the constitutionality of their unprecedented strategy to preemptively approve citizen-initiated minimum wage increases and paid sick leave requirements and then water down the laws after the election.
The move came a week after a Democratic senator requested Democratic Attorney General Dana Nessel’s opinion on the maneuver. If she determines that the tactic was illegal, the more generous minimum wage and earned sick day laws could take effect March 28 — likely prompting a lawsuit from businesses or other groups that support the scaled-back measures.
“Every step, one side or the other, will be disappointed and appeal. And so I say, ‘Why leave the state in the condition of uncertainty? Let’s just take it all the way to the Supreme Court, which is within our prerogative to do so, and get it taken care of as soon as possible,” said Senate Majority Leader Mike Shirkey, of Clarklake.
It is rare for the high court to issue an advisory opinion, which could pre-empt any court challenge against the laws. The last time the justices did so was in 2011, when — at then-Gov. Rick Snyder’s request — they opined on changes to how pensions would be taxed. The court later denied his requests to rule early on a “right-to-work” law and a law to reimburse private schools for the cost of adhering to state requirements.
To prevent the minimum wage and paid leave ballot drives from going to the electorate in November, after which they would have been much harder to change if voters had passed them, GOP legislators preemptively approved them in September so they could be pared back after the election with simple majority votes and the signature of Snyder.
Former Attorney General Bill Schuette, a Republican, endorsed the legality of the contentious strategy in December. But his opinion differed from one issued in 1964 by former Attorney General Frank Kelley, a Democrat.
One new law will gradually increase the state’s $9.25 minimum wage to $12.05 an hour by 2030 — maybe later in the case of a recession — instead of $12 by 2022 as was initially enacted. The wage will rise to $9.48 this year rather than $10, and a yearly inflationary adjustment in 2023 and beyond is gone. The wage could have hit $14.16 in 2030 if the original inflation provision had stayed intact, according to the nonpartisan House Fiscal Agency.
The other new law will exempt employers with fewer than 50 employees from having to provide paid sick days, a change that is estimated to leave up to 1 million employees without the benefit. It also limits the amount of annual minimum mandatory leave at larger employers to 40 hours instead of 72 hours as proposed by the initiative.
Business organizations have praised the GOP-led Legislature’s moves, saying Michigan would have been an outlier and its economic competitiveness would have been jeopardized without the revisions. The ballot drive groups and Democrats have criticized the maneuver as clearly unconstitutional because it occurred in the same legislative session as when the initiative bills were proposed.
Sen. Stephanie Chang, a Detroit Democrat who sought the attorney general opinion, had no qualms with the Republican-led Senate’s request — by voice vote — for the Supreme Court to get involved. The GOP-controlled House also asked for the opinion Wednesday.
“What this is about for me is making sure that we’re giving workers the paid sick time that they deserve and about making sure that people have a living wage,” she said.
Charlie Owens, state director of the small-business advocate NFIB, said the Legislature was on “solid constitutional ground” with its adopt-and-amend strategy, but only the high court can settle the issue.
“This action is critical for thousands of Michigan small-business owners trying to figure out which version of the law they will have to comply with by the March 29 deadline,” he said of the request for a quick opinion.
The Supreme Court has four Republicans and three Democrats, though two of the GOP-nominated justices joined last year with Democrats in some major rulings.