Mothering Justice v. State

Decision Date26 January 2023
Docket Number362271
PartiesMOTHERING JUSTICE, MICHIGAN ONE FAIR WAGE, MICHIGAN TIME TO CARE, RESTAURANT OPPORTUNITIES CENTER OF MICHIGAN, JAMES HAWK, and TIA MARIE SANDERS, Plaintiffs-Appellees, v. ATTORNEY GENERAL, Defendant-Appellee, and STATE OF MICHIGAN Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Before: M. J. Kelly, P.J., and Murray and Riordan, JJ.

CHRISTOPHER M. MURRAY, J.

The issue we must decide in this expedited appeal is whether two statutes that were enacted by the Legislature under the initiative process outlined in the state Constitution, 1963 Mich. Const, art 2, § 9, can be amended during the same legislative session in which they were enacted. The Court of Claims held that the Legislature was prohibited from doing so, and thus ruled that 2018 PA 368 and 369 were unconstitutional. Because the trial court's conclusions are not supported by either the text or intent of art 2 § 9, we reverse the Court of Claims' order and remand for entry of an order granting the state's motion for summary disposition.

Before turning to our decision, we reluctantly add a disclaimer to emphasize a point we hope is obvious, but we know is often lost by those who focus solely on the result of a court decision, rather than the analysis within that decision: the underlying policies set forth in the public acts at issue are completely irrelevant to our decision. Whether "the underlying subject matter is taxes, abortions, sentencing of criminals, you name whatever that social issue is, is not relevant to this matter." Frey v Dir of Dept of Social Services, 162 Mich.App. 586, 589 n1; 413 N.W.2d 54 (1987), aff'd Frey v Dep't of Mgt &amp Budget, 429 Mich. 315; 414 N.W.2d 873 (1987). See also Regents of the Univ of Michigan v Michigan, 395 Mich. 52, 76; 235 N.W.2d 1 (1975) ("[T]he Court is not called upon to give its opinion as to whether the legislation in question is good public policy and the best part of wisdom for the Legislature and the universities to follow. We are asked only whether the legislative conditions invade the constitutional jurisdiction of the universities. Therefore, our conclusions based on the Constitution and the foregoing precedents and our analysis of the lessons they teach can be seen only in that perspective."). Instead, because our judicial task is to uphold the Constitution as adopted by the people, our focus is exclusively on the constitutionality of the procedure used by the Legislature to amend these acts.

I. BACKGROUND

The procedural background to the legislation was set forth by Justice (now Chief Justice) Clement in her concurring opinion in In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 505 Mich. 884, 884-885; 936 N.W.2d 241 (2019) (Clement, J., concurring):

The Michigan Constitution allows Michigan voters to exercise various forms of direct democracy, one of which is to initiate legislation via petitions signed by a requisite number of voters. See Const 1963, art 2, § 9. Groups known as 'Michigan One Fair Wage' and 'MI Time to Care' sponsored, respectively, proposals known as the 'Improved Workforce Opportunity Wage Act' and the 'Earned Sick Time Act.' Pursuant to MCL 168.473, they filed those petitions with the Secretary of State in the summer of 2018. The Secretary of State then notified the Board of State Canvassers, MCL 168.475(1), which canvassed the petitions to determine whether an adequate number of signatures was submitted, MCL 168.476(1). The Board ultimately certified both petitions as sufficient, MCL 168.477(1), and, pursuant to Const 1963, art 2, § 9, the proposals were submitted to the legislature. This constitutional provision required that the proposals were to 'be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition [was] received by the legislature,' with enactment not 'subject to the veto power of the governor.' The legislature ultimately adopted both 'without change or amendment' on September 5, 2018. 2018 PAs 337 and 338. Enacting them meant that they were not 'submit[ted] . . . to the people for approval or rejection at the next general election.' Const 1963, art 2, § 9. Had they been submitted to the people and adopted, they would only have been amendable with a three-fourths majority in the legislature. Id.
After the 2018 elections, the legislature turned its attention to these policy areas once again. Although Attorney General Frank Kelley had, several decades ago, opined that 'the legislature enacting an initiative petition proposal cannot amend the law so enacted at the same legislative session,' OAG, 1963-1964, No. 4,303, p 309, at 311 (March 6, 1964), a member of the Michigan Senate asked for an opinion on that issue and Attorney General Bill Schuette issued a new opinion which superseded the prior opinion and concluded that the legislature could enact amendments to an initiated law during the same session at which the initiated law was itself enacted. See OAG, 2017-2018, No. 7306, p. ---- (December 3, 2018). The Legislature thereafter did adopt certain amendments to these proposals with a simple majority, which-as ordinary legislation-the Governor signed into law. See 2018 PA 368 and 369. Because neither law contained a more specific effective date, both took effect on the 91st day after the 99th legislature adjourned sine die. Const 1963, art 4, § 27; Frey v Dep't of Mgt & Budget, 429 Mich. [at 340]. The Legislature adjourned on December 28, 2018, see 2018 HCR 29, so the effective date of 2018 PA 368 and 369 was March 29, 2019. [footnotes omitted].

In 2019, the Legislature sought an advisory opinion from the Supreme Court regarding the constitutionality of 2018 PA 368 and 2018 PA 369, but that Court denied the requests because it was "not persuaded that granting the requests would be an appropriate exercise of the Court's discretion." In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 505 Mich. 884.

Two years later, plaintiffs filed a complaint (which was later amended) asserting that 2018 PA 368 and 2018 PA 369 were unconstitutional under Const 1963, art 2, § 9, and that 2018 PA 337 and 2018 PA 338 remained in effect. After several procedural matters were addressed,[1] each party moved for summary disposition under MCR 2.116(C)(10). Plaintiffs and the Attorney General moved for summary disposition on the basis that Const 1963, art 2, § 9 did not permit the Legislature to adopt a proposed initiative and amend it within the same legislative session[2] because allowing it to do so would be contrary to the common understanding of the Michigan Constitution. The Attorney General further argued that if 2018 PA 368 and 2018 PA 369 were declared unconstitutional, 2018 PA 337 and 2018 PA 338 would be in full effect. The State sought judgment in its favor on the basis that the Constitution did not preclude the Legislature from amending a voter-initiated law in the same session in which the Legislature approved it.

The Court of Claims issued a thorough written opinion. In its opinion, the court recognized that Const 1963, art 2, § 9 outlined three options that the Legislature could take during the first 40 days after receiving an initiative petition: it could reject the petition, it could reject the petition and propose a different law, or it could enact the law without change. The court opined that "[a]rticle 2, § 9 does not provide the Legislature with any other options during (or after) the 40-day period, including the option to significantly amend the proposed law after adopting it." Because the people gave the Legislature the option to propose an alternative, the court ruled that the Legislature could not simply adopt the legislation and amend it after it was enacted.

Part of the court's reasoning was premised upon two effects that the court perceived would occur if the Legislature were permitted to adopt and amend initiative laws. First, as to the right of the people to a referendum, the court concluded that "the use of the words 'such' and 'it' [within art 2, § 9] indicates that the People intended that the exact law will be subject to the referendum," and therefore the initiated law could not be amended until after the referendum period had passed. Second, it noted that, once passed by voters, an initiated law could only be repealed by another vote of the people or by a supermajority vote of ¾ of the Legislature. The court opined that if the Legislature could adopt and significantly amend a voter-initiated law in the same legislative session, it would render the supermajority provision meaningless because a Legislature that opposed the initiative would only need to adopt it and then amend or repeal it by a simple majority. Permitting it to do so would effectively eliminate the supermajority provision given to laws passed by the people through the initiative process.

The trial court also determined that Const 1963, art 4, § 1, which granted the Legislature full legislative authority with only two limitations, was limited by Const 1963, art 2, § 9, which outlined and constrained the Legislature's power regarding initiatives and did not allow the Legislature to immediately amend an initiative that it adopted. The court concluded that Const 1963, art 2, § 9 prohibited the Legislature from taking an action outside of the options that the people provided in Const 1963, art 2, § 9.

Taking these legal conclusions and applying them to 2018 PA 368 and 2018 PA 369, the court held that the substantive amendments to these voter-initiated acts effectively thwarted the intent of the people by denying them the opportunity to vote on whether they...

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