As many employers know by now, the Michigan Legislature amended the two expensive and administratively burdensome laws this month. They now go to the Governor’s desk for signature. However, Governor Snyder is being somewhat cagey in his support for passage. On Sunday’s Channel 4 show, Flashpoint, Devin Scillian asked Governor Snyder if he would be signing the laws. Governor Snyder responded he was looking at all laws passed by the lame duck Legislature for policy value to the state and would not comment on the whether he would sign the bills until he had a chance to review them. He has two weeks left before the end of the Legislative session and his final term as Governor to consider them along with what he estimated would be 200 other bills passed in this final month of the session and his office.
Even if he signs them it appears, they may face legal challenge. At least one Michigan Constitutional scholar opined he believes the passage of these laws during lame duck would be unconstitutional.
Robert Sedler, Constitutional Law Professor at Wayne State University wrote an op-ed for the Detroit News last week. Professor Sedler opined:
“The plain language of the Constitution and the structure for legislative initiative that the Constitution establishes is absolutely clear… Under the Constitution, once an outgoing Legislature has enacted a law in response to an initiative petition, and prevented the people from voting on the initiative, that Legislature cannot amend the initiative law in the same legislative session… The Michigan Constitution is close to the people and under Art. II, sec.9, the people have reserved to themselves the power to propose laws by an initiative petition.
The Legislature has three options: first, it can enact the law without change or amendment; second, it can reject the law, in which case the law is submitted to the people for a vote at the next general election; and third, it can propose a different law on the same subject, in which case, both proposals are submitted to the people for a vote at the next general election, and whichever proposal receives a majority of the votes becomes law.
These are the only options that the Constitution provides. It does not provide a fourth option, authorizing the legislature to enact the proposed law without change or amendment, and then turn around after the election is over and amend or change the law.”
This may mean that even if the laws are signed by the Governor, they may not take effect. If taken to court, a lower court could put a stay in place unless and until the Michigan Supreme Court rules on the constitutionality of how the Legislature and the Governor passed the amended laws. If this action is found unconstitutional, another attempt at passage of the amended laws would have to go through a newly constituted Legislature with a Democratic held Governor’s office. And though Governor Snyder may sign off on these amended laws, newly elected Governor Whitmer may not.
ASE members can hear about what these new state laws and whether they can be successfully implemented or not at ASE’s upcoming Hot Button Briefing this week and next:
ASE Hot Button Briefings
Livonia, December 14th and 17th – Join Mr. Stephen Gee, Attorney, Clark Hill, ASE staff, and your ASE member colleagues to this special briefing - Michigan’s Amended Minimum Wage and New Earned Sick Time Laws. Location – ASE Headquarters. Friday, December 14th is full and wait list only. To register for December 17th click here.
Saginaw, December 19th – Join Mr. Stephen Gee, Attorney, Clark Hill, ASE staff, and your ASE member colleagues to this special briefing - Michigan’s Amended Minimum Wage and New Earned Sick Time Laws. Location – Delta College University Center Campus. Register here.
Sources: December 9, 2018 Flashpoint, WDIV. Detroit News Opinion: Lawmakers pull a 'bait and
switch' Robert Sedler Published 10:18 p.m. ET Dec. 6, 2018