LANSING – The legal and bureaucratic wrangling over a slew of ballot proposals is finally over after the Supreme Court cleared the way Wednesday for all but one of them, notably approving the one addressing collective bargaining rights, to appear on the November ballot.
Only the proposal to add eight new casinos failed to win the court’s approval on a 4-3 vote. Otherwise, the court voted unanimously to deem constitutional, and order onto the ballot, proposals to enshrine into the Constitution the right to collective bargaining, a requirement for a two-thirds legislative majority or statewide vote to raise taxes, and a mandate for statewide voter approval to authorize new international border crossings.
In all four cases, opponents had argued the proposals failed to comply with Article XII, Section 2 of the Constitution, which requires the proposal to state any sections of the Constitution that would be altered or abrogated. In each case, other than the casino one, the court rejected those arguments, saying a proposal must literally alter the text of an existing section of the Constitution or abrogate it, the latter of which equates to rendering a section of the Constitution wholly inoperative.
“The language of the amendment itself, rather than how proponents or opponents of the amendment characterize its meaning, controls whether an existing provision would be altered or abrogated by the proposed amendment,” Justice Brian Zahra wrote in the majority opinion. “We reaffirm our prior case law holding that an existing provision is only altered when the amendment actually adds to, deletes from, or changes the wording of the provision. We further reaffirm that an amendment only abrogates an existing provision when it renders that provision wholly inoperative.”
The decision – after tortuous administrative and court proceedings during the past several weeks – means voters will face six ballot proposals: one referendum and five constitutional amendments. Already certified to the ballot were the referendum on the emergency manager law and the constitutional amendments to require utilities to generate 25 percent of their power from renewable sources and ensure the state’s home help workers can unionize and have a registry listing their names.
The development marks the most proposals since 1996 when there were also were six ballot questions and the most constitutional amendments since 1980 when six were up for consideration before voters.
The decision (Protect Our Jobs et al v. Board of State Canvassers, SC Docket Nos. 145748, 145753, 145754, and 145755) will mean one of the most high-stakes, hard-fought and critical ballot proposal fights the state has seen with the collective bargaining issue. It would nullify any future or existing law that infringes upon the right to collectively bargain. That would render invalid scores of laws enacted by Republicans over the years and pre-empt any attempt to make Michigan a right-to-work state in which workers could not be forced to join a union or pay union dues just because they work for a company that has a collective bargaining agreement with its workers.
Organized labor is prepared to spend many millions to pass the proposal while business organizations have vowed to do the same to defeat it. The decision from the court, with its 4-3 majority of justices nominated by the Republican Party, inspired the opposite reactions from each side that one has come to expect on such high-profile rulings.
Dan Lijana, spokesperson for Protect Our Jobs, the organization backing the collective bargaining proposal, said the ruling came down to the proposal meeting all legal requirements, nothing more, nothing less.
Todd Cook, director of the liberal group We Are the People Michigan, said the decision was a rebuke to “corporate special interests” who tried to prevent voters from having a shot at the proposal.
“The Supreme Court made the right call today. When nearly 700,000 citizens sign a petition, we have a right to be heard and to make our case to the voters,” he said in a statement. “Nurses, firefighters, teachers and all Michigan workers deserve the right to join together to advocate for safety, fair working conditions, decent wages and good benefits. That’s how we build a strong middle class and a strong economy in Michigan.”
But some regular allies of the court’s conservative majority blasted the decision.
“We are very disappointed with this ruling by the Michigan Supreme Court and especially disappointed with Chief Justice Robert P. Young, Jr., and Justices Mary Beth Kelly, Stephen J. Markman and Brian Zahra who failed to uphold clear standards for proposed amendments to the state Constitution,” said Michigan Chamber of Commerce President and CEO Rich Studley in a statement naming the four Republican-nominated justices.
Republican strategist Greg McNeilly panned the decision. He questioned whether having two justices up for election this year – Markman and Zahra – played a role.
“It smells like a political decision and not a substantive judicial opinion,” he said.
Gongwer News Service previously reported that unions planned to pour the millions they have committed to the proposal ($8 million through July 20) to win Democratic control of the Supreme Court if the court rejected the proposal.
McNeilly said he wanted to read the opinion to see the justices’ rationale for not finding it to be a general revision of the Constitution, unlike in 2008 when the court held that a sweeping proposal from Democrats and unions called Reform Michigan Government Now was blocked from the ballot as an illegal general revision. But the court did not address that argument in its opinion.
The crux of the argument against the proposal’s constitutionality involved the proposal adding a new section that opponents claimed rewrote Article IV, Section 48, and Article IV, Section 49, the latter of which provides the Legislature with authority to establish laws on the hours and conditions of employment, and then made it a new Article I, Section 28. But the court held that because the proposal did not literally alter the wording in Article IV, Section 48, or Article IV, Section 49, nor abrogate it, that argument failed.
Citizens Protecting Michigan’s Constitution, which opposes the proposal, vied that allowing such a move to stand could allow the stealth rewriting of the Constitution through adding new sections that rewrite old ones. The court again disagreed.
“Even if a proposed amendment’s new provision specifically refers to or quotes an existing constitutional power and then proceeds to limit that power, as the proposed collective bargaining amendment does with (Section) 49, there would be no alteration of the existing provision because the text of the existing provision itself would remain unchanged,” Zahra wrote.
To the group’s argument that the change abrogates the Legislature’s power in sections 48 and 49 of Article IV, Zahra wrote: “CPMC misapprehends the meaning of abrogation in the context of the established petition law of this state. Under the existing constitutional language, the legislative power is broad, but it is neither absolute nor exclusive. Neither section suggests that this power cannot be limited or affected by other provisions of the Constitution. Therefore, the Legislature may still enact the laws provided for in (Sections) 48 and 49, but should the amendment pass, the power to do so could be limited by collective-bargaining agreements. Because the Legislature retains the same nonexclusive grant of power, neither section would be rendered wholly inoperative.”
The decision also was a setback to Governor Rick Snyder and Attorney General Bill Schuette, who argued the unconstitutionality of the Protect Our Jobs proposal. Mr. Snyder also formally intervened against the border crossing proposal. Coincidentally, Zahra, who wrote the o
