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Where (1) the Legislature received initiative petitions that proposed raising Michigan’s minimum wage, allowing for compensatory time in lieu of overtime and providing paid sick leave to employees, (2) the Legislature voted in September 2018 to adopt both initiatives into law and (3) 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, the decision to adopt the initiatives and then later amend them in the same legislative session violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process.
“In 2018, the Legislature received initiative petitions that proposed raising Michigan’s minimum wage, allowing for compensatory time in lieu of overtime, and providing paid sick leave to employees. Under Michigan’s Constitution, the Legislature could vote to adopt the initiatives as presented, reject the initiatives but place them on the general election ballot, or propose alternatives to the initiatives’ proposed language and place both the alternative and original proposals on the general election ballot. Const 1963, art 2, §9. After receiving the petitions, the Legislature voted in September 2018 to adopt both into law. See 2018 PA 337 and 2018 PA 338.
“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. See 2018 PA 368 and 2018 PA 369. We hold that this decision to adopt the initiatives and then later amend them in the same legislative session (what has been referred to as ‘adopt-and-amend’) violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process. We therefore reverse the Court of Appeals’ judgment and reinstate 2018 PA 337 and 2018 PA 338 as set forth in this opinion. …
“For the reasons set forth in this opinion, we hold that Article 2, §9 provides the Legislature with three—and only three—options upon receiving a valid initiative petition. Any legislative response to a valid initiative petition that falls outside those three discrete options is unconstitutional and impermissibly infringes upon the people’s reserved power. Accordingly, we reverse the Court of Appeals’ judgment and hold that 2018 PA 368 and 2018 PA 369 are unconstitutional. Moreover, except as discussed earlier in this opinion, we hold that the Wage Act and the Earned Sick Leave Act shall go into effect 205 days after this opinion’s publication date.”
Concurring justice’s comments
BOLDEN, J. (concurring). “I join the majority opinion in full to hold that 2018 PA 368 and 2018 PA 369 are unconstitutional because they amended ballot initiatives that had been adopted into law within the same legislative session, an act that was not included in the three options provided to the Legislature under the initiative clause of the Michigan Constitution. … Half of a decade later, we must now decide how to remedy the Legislature’s choice of a pathway that avoided both enacting the petition’s proposed measure as originally drafted and placing the issue on the ballot. It seems to me that the best solution would be putting the issue on the ballot. I write separately to share my disappointment that although petitioners followed the initiative clause of the Constitution to a tee, the issue somehow evaded the fundamental constitutional guarantee of placement on a ballot.”
Dissenting justices’ comments
CLEMENT, C.J. (dissenting). “Article 4, §1 of our Constitution vests the legislative power in the Legislature, which includes the power to amend existing laws. And it has always been understood that the Legislature’s power under Article 4, §1 is limited only if the Constitution expressly says so. Article 2, §9 is silent about whether the Legislature may amend a law proposed by initiative petition that the Legislature has enacted, yet the majority concludes that the Constitution restricts the Legislature from amending a law proposed by initiative petition in the same legislative session (but, curiously, not later sessions). 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. But nothing in Article 2, §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. That power remains with the people, as our Constitution dictates. I therefore dissent. I would have affirmed the judgment of the Court of Appeals.
ZAHRA, J. (dissenting). “… In the clearest way possible, the Court exercises legislative power, drafting new legislation that has never been approved by the Legislature or approved by the voters. Without a single vote of support from the elected Legislature or the citizens, this Court has now written the public policy of this state as to minimum wages, tipped wages, and earned sick time. Because the remedy chosen by the majority lacks support in the law of this state and improperly encroaches on the authority constitutionally provided to the Legislature, I dissent.”
