We’re about to find out.
Based on what we’ve seen in the past 10 months, it appears former Gov. Rick Snyder was able to achieve something ex-state Democratic Party chairman Mark Brewer never could — destroy the perpetual conservative Republican majority concocted by another Michigan governor, John Engler, two decades ago, replacing it with a fluid centrist bench that is unpredictable in deciding on any number of lawsuits.
That’s because two Snyder-appointed Republican justices — Beth Clement and David Viviano — deserted their three GOP colleagues last summer to vote with Democrat-nominated Justices Bridget McCormack and Richard Bernstein to place the Voters Not Politicians (VNP) proposal on the 2018 ballot (voters approved it). The Viviano-Clement axis also sided with Bernstein and McCormack on two other cases involving hot-button issues.
Since then, Clement parlayed her “independence” into election for a full eight-year term, and her then-colleague Kurtis Wilder, an African-American Republican, was bumped off last Nov. 6 by Democrat Megan Cavanagh, daughter of a former justice, Mike Cavanagh.
Now, this year’s Supremes say they will hear arguments three months from now on whether to issue an advisory opinion on whether the Legislature has the power to enact and later amend public acts in the same session. At stake will be two new laws on hiking the minimum wage and earned sick leave. The issue encapsulates a classic confrontation between Democrats and organized labor, on the one hand, and Republicans and the business community, on the other. The latter believes the Legislature had a perfect constitutional right to do what it did; the former does not.
In the spotlight once again will be justices Clement and Viviano, who sided with Democrats McCormack and Bernstein on the three key decisions last year. If either of the two — Viviano, originally appointed by Snyder but now “woke” following re-election to an eight-year term, or Clement, who had no judicial experience before Snyder promoted her to the high bench after she had served as his legal counsel — breaks ranks once again and sides with McCormack, Bernstein, and Cavanagh, what the Legislature did last year will be toast.
The Michigan Supreme Court has set July 17 for oral arguments on whether the Court should issue an advisory opinion on the Legislature’s action in the lame duck session following last fall’s general election was constitutional
The Court did not commit to issuing an opinion. The Court’s action means that Attorney General Dana Nessel, a Democrat, will not act on a pending request for an Attorney General opinion on whether the Legislature can adopt a citizen initiative and later in that same legislative session amend or repeal that same initiated law.
Last year, the Board of State Canvassers certified that two citizen initiatives had submitted enough valid signatures from registered voters (8% of the total vote cast for Governor in 2014). Both initiatives were submitted to the Legislature, one raising the minimum wage; the other providing for paid sick time.
Had the legislature, during the 40 session days each initiative was before it, ignored or defeated the initiatives, the two proposals would have been placed on the November 6, 2018, statewide ballot for voter approval. If the proposed legislation had been approved by the electorate, future legislatures would have needed a ¾ vote in each legislative chamber (83 votes in the 110-member house; 29 votes in 38-member senate) to amend or repeal a voter-enacted initiative.
Polls last fall showed both proposals had a better-than-even chance of being approved by the voters. GOP legislators knew that, if that came to pass, they would never be able to reach the 3/4 majority standard to amend the two initiatives, either in 2018 or in future years, yet they found flaws in both initiatives.
But the Constitution gave lawmakers another option — simply enact both initiatives into law, bypassing a vote of the people.
So majority Republicans in both chambers adopted both initiatives before the election (over the objections of most Democrats), making them law (but not with immediate effect). An initiated law does not require the Governor’s signature. Then, in the Legislature’s lame duck session held after the Nov. 6 election, Republican majorities in the 99th Legislature had what they believed to be an incentive sanctioned by the Constitution to accomplish what is called “adopt and amend.” That’s what they did. On pretty much party-line votes, the Legislature amended both statutes approved just three months earlier. Governor Snyder then signed them into law.
Last fall, minority Democrats in the Legislature clearly preferred the petitioners’ original language in both initiatives, and, realizing what the GOP’s strategy was, were torn on how to vote on enacting the proposals into law. Some did, but most did not. Then Dems watched helplessly in December as majority Republicans completed their power play. To be sure, Democrats’ opposition to “adopt and amend” had less to do with the Legislature’s constitutional prerogatives than with labor policy and union opposition to what they believed was GOP emasculation of the initiatives’ original intent.
Ordinarily, a lawsuit challenging the constitutionally of a public act would, since 2013, begin at the Michigan Court of Claims with a trial judge drawn randomly from a pool of four members of the Michigan Court of Appeals selected for the Court of Claims by the Chief Justice of the Michigan Supreme Court. An appeal of the Court of Claims action could be taken to a three-judge panel of the Michigan Court of Appeals. An appeal of a Court of Appeals decision could be taken by leave to the Michigan Supreme Court. This can be a lengthy process taking several years.
But here’s another wrinkle to this unique story — the 1963 Michigan Constitution, in Article 3, Section 8, provides that “either house of the Legislature or the Governor may request the opinion of the Supreme Court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.”
This provision was not found in the 1908 Constitution. It came from a proposal issued by Con-Con delegate Robert Danhof, who was chairman of the Committee on the Judicial Branch at the 1961-62 conclave (Danhof later became chief judge of the state Court of Appeals). The concept of a Supreme Court Advisory Opinion was taken from the Massachusetts Constitution at the suggestion of then-Michigan Supreme Court Justice Eugene Black.
In case anyone is curious, the U. S. Supreme Court does not issue Advisory Opinions. It requires actual cases in controversy.
The last time the Michigan Supreme Court issued an advisory opinion was on PA 38 of 2011, a law which eliminated the Michigan Business Tax and replaced it with a fixed rate corporate income tax and limited pension exemptions based on age categories (this was upheld by a conservative Republican majority court). Another historic example of an Advisory Opinion by the Michigan Supreme Court was in 1976 when it declared the 1975 Political Reform Act was unconstitutional for violating the single subject-single object requirement found in Article 4, Section 24 (that decision came from a closely-divided, moderate court).
Oral argument in this year’s Advisory Opinion request will be heard approximately one year following the Supreme Court’s oral argument in Citizens Protecting Michigan’s Constitution v Johnson, which challenged the eligibility of the VNP proposal to be placed on the 2018 general election ballot. That is when, in a 4-3 decision issued on July 31, 2018, Viviano and Clement split ranks with their three Republican colleagues to vote with McCormack and Bernstein to place the VNP proposal on the statewide ballot.
Then, late last year, Stephen Markman stepped aside after a single term as chief justice, paving the way for Justices McCormack and Viviano to be elected Chief Justice and Chief Justice Pro Tempore for 2019-2020, with the support of Clement and Viviano himself.
The big question now is: Will Justices Clement and Viviano rejoin the two remaining conservative justices, Markman and Brian Zahra, to form a majority advisory opinion on these “traditional” business-related issues? For that matter, could McCormack, Bernstein and Cavanagh join them in achieving a unanimous opinion?
At issue is whether the Legislature followed all the provisions on initiatives in Article 2, Section 9. It’s worth noting that the Michigan Court of Appeals, in Reynolds v Martin back in 2000, has already ruled that the Legislature does indeed possess the inherent power to legislate on any subject at any time regardless of a pending referendum. In the present instance, the question to be answered is in the context of an initiative, but the primary issue is whether the Constitution grants the Legislature the inherent power to legislate at any time, except on subjects expressly prohibited to it like the death penalty or a graduated income tax. The Michigan Constitution contains no provisions limiting the Legislature pre-sine die, meaning before lawmakers adjourn for the remainder of the session.
If the three Democrat-nominated justices keep either or both Viviano and Clement in their new majority to deny an advisory opinion or they rewrite Article 2, Section 9, in a way that limits the Legislature’s inherent power to legislate, then the Michigan political scene and Michigan jurisprudence will, in fact, have undergone an epic transformation.