(Source: MIRS.news, Published 07/31/2024) The Michigan Supreme Court split along party lines on Wednesday to rule that the Republican-led Legislature’s adopt-and-amend tactic for minimum wage and paid sick leave initiatives in 2018 was unconstitutional. 

In an opinion by Justice Elizabeth Welch, the Democratic majority held that the Legislature’s power does not override the people’s initiative powers. In 2018, as a way to keep the proposals off the 2018 ballot, the Legislature approved the minimum wage and paid sick leave initiatives and then immediately watered them down before they went into effect. 

The Supreme Court ruled 4-3 that the Constitution doesn't give the Legislature the power to do what they did. The minority on the court wrote that since the Constitution doesn't disallow it, what the Legislature did is OK. 

“When the Legislature passed the Amended Wage Act and the Amended Earned Sick Time Act, it obstructed voters’ ability to exercise their direct democracy rights through the initiative process,” Welch wrote. “That is because 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, (Section) 9.” 

As a result, the Michigan Court of Appeals’ ruling was reversed and Public Acts 337 and 338 of 2019 are reinstated. The upshot is a roughly $2-an-hour increase in the minimum wage by Feb. 21 to around $12.30 an hour, the phase out of the lower minimum wage for tipped workers and a mandatory 72 hours a year of paid leave for all employees. 

House Minority Leader Matt Hall (R-Kalamazoo) called for lawmakers to “immediate” return to the Capitol because the decision “will completely disrupt the livelihoods of hard-working Michiganders." Senate Majority Leader Winnie Brinks (D-Grand Rapids) said, “The then-Republican majority made a deceitful bait-and-switch on the very people they were sworn to serve, and this lengthy battle was caused by their tactics.” 

Senate Minority Leader Aric Nesbitt (R-Lawton) called it a “misguided ruling” that will make it difficult for struggling families. 

“While Democrats are out on the campaign trail, servers and bartenders are still hard at work,” Hall said, noting the Legislature hasn’t convened since June 27. “But they might be on the unemployment line soon if Democrats don’t come back and help House Republicans save Michigan jobs.” 

Nesbitt noted: “The Legislature needs to act now to prevent catastrophic damage to the livelihoods of the workers at restaurants and bars throughout our state that barely survived the mandated COVID lockdowns and are still facing increased costs due to inflation. 

“We only need two Democrat senators in the Michigan Senate who care about the lives of Michigan workers to fix this devastating change,” he added. 

House Speaker Joe Tate (D-Detroit) posted on X that the court provided “clarity” and House Dems are “happy to have a resolution & are reviewing the full opinion.” 

Rep. Laurie Pohutsky (D-Livonia) also praised the ruling, as did Michigan Democratic Party Chair Lavora Barnes.  

Democratic Attorney General Dana Nessel, who was named a defendant in the lawsuit based on an opinion from her predecessor upholding the tactic, praised the court’s 4-3 decision, calling it a “landmark victory for Michigan voters and a resounding affirmation of the power of direct democracy.” 

What Happened In 2018 

Michigan One Fair Wage circulated petitions to have voters consider a proposal increasing the minimum wage to $12 an hour by 2022 and tying the rate to inflation, while Michigan Time to Care proposed employers provide paid sick time to employees. 

The Legislature adopted the changes – Public Acts 337 and 338 – before Election Day, preventing a statewide vote, and after the election the Legislature amended those acts to increase the minimum wage to $12.05 per hour by 2030 and removed the inflation connection, as well as made exemptions to the paid sick time law – which became PA 368 and 369.  

The state’s high court said PA 337 and PA 338 should go into effect on Feb. 21, 2025 – 205 days after the court's decision. 

The court’s ruling holds that the phase-in increases will gradually occur each Feb. 21 – through 2029 – and will account for inflation, meaning the state’s minimum wage will increase from $10.33 per hour to around $12.30 per hour effective Feb. 21, 2025, and the tipped minimum wage – currently at $3.93 – will be 48 percent of the minimum wage, or about $5.90. 

In 2029, the tipped wage will be the same as the minimum wage. 

Under the initial Acts, the increases were to occur from 2019 to 2024. 

Rep. Noah Arbit (D-West Bloomfield) posted on X that 40 percent of restaurants “could go out of business” as a result of the ruling, and he looks forward to working with his colleagues and "partners on a fix that will not leave our beloved community restaurants on a cliff-edge this winter.” 

The Decision 

As stated above, Justice Welch wrote that the Legislature’s power does not override the people’s initiative powers. 

The Republican justices had a different take. 

“There is certainly reason to be frustrated by the Legislature’s actions here: enacting laws proposed by initiative petition to avoid ballot approval only to substantially alter them in the same legislative session,” wrote Chief Justice Elizabeth Clement wrote in the dissent. “But nothing in Article 2, (Section) 9 restricts the Legislature from doing so. And as tempting as it might be to step into the breach, this Court lacks the power to create restrictions out of whole cloth.” 

Justice Brian Zahra criticized the majority, writing that the majority adopted “as the employment law of this state statutory language that was neither approved by the Legislature nor voted on by the people.” 

He noted: “The Court is not vindicating the people’s ‘rights to direct democracy,’ nor is it respecting the proper role of ‘the Legislature’s lawmaking power,’ as it claims. It is replacing those powers with its own. 

“The chosen remedy expressed in the majority opinion and the Court’s choice to exercise legislative power by rewriting statutory language find no support in the Michigan Constitution, or in the history, tradition or case law of this state or this country,” Zahra added. 

Justices heard oral arguments in December, at which time two attorneys told the court the adopt-and-amend tactic was unconstitutional, but the state’s Deputy Solicitor General, who represented the state, said the Constitution doesn’t limit the Legislature’s authority to adopt and amend. 

The court’s holding reaffirmed the constitutional right of voters to place proposals on the ballot without interference from the Legislature and held that every Michigan worker will have the right to earned paid sick leave. 

Mark Brewer, a Goodman Acker PC attorney who represented the plaintiffs, called Wednesday’s ruling a “tremendous victory.” 

“This decision marks a major step forward in the fight for workers’ rights and fair wages in Michigan,” the law firm said in a statement.