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State Court of Appeals: 'Adopt and amend' tactic is constitutional

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The Michigan Court of Appeals has ruled the state Legislature acted legally when it watered down laws that raised the state’s minimum wage and promised workers paid sick leave.

The court case stems from a 2018 voter-led referendum that sought to raise the minimum wage, and provide paid sick leave to Michigan workers. Under Michigan law, the Legislature has the option to either adopt the law or pass it along to voters.

The then-Republican-led Legislature opted to adopt the law. But then it changed the language to effectively gut the legislation — a process called “adopt and amend.”

The legal question at hand was whether adopt and amend was a violation of the state constitution. The Michigan Court of Claims said yes, setting the original legislation on a path to take effect.

But now, the state Court of Appeals has said no. It said the Legislature had the authority to amend both laws, and that legislators’ intent in changing the law, within the confines of the constitution, is irrelevant.

“Courts are concerned with what the law states, i.e., what the words actually contained in the law state, and a constitutional law does not become unconstitutional because it was passed with a bad intent,” the Court wrote in a 3-0 opinion.

In a concurring opinion, Judge Michael Kelly chastised the 2018 Legislature for its tactics, while agreeing that the court had no choice but to rule in their favor.

“Although this procedure is permissible under the language of our constitution, this ploy — adopting an initiative into law so as to prevent it from going onto the ballot and then promptly and substantially amending that law in a manner that has left it essentially defanged — is anti-democratic,” Kelly wrote. “I cannot believe that this drastic action is what the drafters of our constitution even contemplated, let alone intended.”

The ruling means the scaled-back version of the minimum wage law stands for now. On February 19, Michigan’s minimum wage was to increase to $13.03 an hour for non-tipped workers, and $11.73 an hour plus tips for tipped workers. Instead, the current rate of $10.10 an hour for regular hourly workers will remain in effect, along with $3.75 an hour for tipped workers.

Groups behind the original referendum decried the ruling, and pledged to appeal to the Michigan Supreme Court.

“We are extremely disappointed by the Michigan Court of Appeals’ decision to side with the former Republican-controlled Legislature’s ‘adopt-and-amend’ shenanigans. The decision, once again, delays a much-needed and deserved pay increase for Michigan workers,” said Eboni Taylor, executive director of Mothering Justice, one of the plaintiffs in the case.

“This is also a devastating blow to Michiganders that deserve paid sick time. The people of Michigan have long waited for earned paid sick time changes to be actualized. Everyone deserves and needs paid time off to take care of themselves or family members, and our economy will see the benefit of a labor ecosystem that honors this.”

“We will continue fighting for workers all the way to the Supreme Court,” said Maricela Gutierrez, co-organizing director at One Fair Wage, another plaintiff. “This only makes it so that we raise our voices higher, alongside the thousands of low-wage workers who were just undermined by this decision from the Michigan Court of Appeals.

"It’s insane that workers are earning $3 per hour in Michigan, and that employers get to use workers’ tips to subsidize poverty wages. Low-wage workers won’t stop fighting until this legacy of slavery is demolished and until we all get One Fair Wage,” Gutierrez said.

Business groups, on the other hand, are celebrating the ruling.

"We are relieved and appreciative of the unanimous ‘Adopt and Amend’ decision out of the Court of Appeals today that will allow Michigan and its 18,000 restaurants and hotels to move forward with greater certainty as to their operating future,” said Justin Winslow, president and CEO of the Michigan Restaurant and Lodging Association.

“Through this ruling, countless restaurants and 50,000 hospitality jobs have been at least temporarily saved. We are optimistic that the Michigan Supreme Court will recognize the same and allow this industry to redirect its focus to the daunting task of recovering from a pandemic that decimated it so completely.”

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