Government, Human Resources, and Manufacturing

RTW law isn’t challenge-proof

Appropriation measure doesn’t keep statute from going to courts or voters.

December 29, 2012
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When Republicans inserted an appropriations bill into the right-to-work legislation, most political observers said they did so to keep the statute from going to the public for a vote. Republicans had just seen voters reject their emergency manager law, which didn’t contain a spending measure, and they didn’t want that to happen again.

The state Constitution bans appropriation bills from becoming referendums and then going before voters. So GOP lawmakers inserted $1 million into RTW as funding for the agencies that will implement the statute. But the Constitution gives opponents another path to get the matter before voters, and that is through a statutory initiative. It’s an indirect method found in Article II, Section 9.

The initiative allows opponents of a particular legislation — in this case, labor unions and Democrats — to gather signatures on a petition to repeal RTW. The qualified signatures needed must be at least 8 percent of the total votes cast in the last gubernatorial race. Based on the 2010 election won by Republican Gov. Rick Snyder, the number needed would be about 260,000.

Once the signatures are certified, the petition is presented to the state House and Senate. Members of both chambers then have 40 session days to accept or reject the petition. If it’s accepted, the RTW law would be wiped off the book. However, Republicans will control both chambers for the next two years, so the petition is almost certain to be rejected.

Rejecting it will automatically put the issue before voters in the November 2014 election, and on the same ballot Snyder will be seeking another term, if he decides to run again. Should voters approve the repeal, the governor couldn’t veto the action and it would take a three-fourths vote of the Legislature to overturn it.

What RTW opponents will do about the legislation isn’t certain. One report said they would reveal their plans around the time Snyder gives his State-of-the-State address, which is a few weeks away.

However, State Rep. Brandon Dillon, a Grand Rapids Democrat, said he hasn’t heard that a timeline had been set.

“I’m planning to step back, assess where things are and find out what they would like to do to reverse it, supersede it, or however you want to describe it. I haven’t heard a specific timeline when they plan to announce anything, if they plan to do that,” he said. “My understanding is, after the first of the year, they were really going to start thinking about what the strategy is to go forward,”

Dillon did think members of organized labor would consider using the statutory initiative as part of its strategy, along with other options including challenging the appropriations portion of RTW in state court, heading to federal court, or possibly trying to place an appeal question on the ballot.

“There’s a whole host of things they can do, but it would be correct to assume that I think the voter-initialed statutory initiative is something that will be considered. But I can’t say whether or not that will ultimately be what they decide upon, but I’ve heard it talked about,” he said.

A legal challenge to RTW hasn’t been made yet because a few questions have to be answered, such as whether the law covers state unionized employees. Dillon said Richard McLellan, a Lansing attorney and founder of the Mackinac Center for Public Policy in Midland, said the state’s Civil Service Commission has sole authority over state employees, not the Legislature. Michigan Attorney General Bill Schuette felt otherwise.

“My guess is there will be a court challenge on equal protection in federal court based on the carve-out the police officers and firefighters were given (in the legislation). Whether or not there is going to be a challenge on the appropriation, I’m not certain that will go forward,” said Dillon.

Even if there isn’t a challenge to the appropriation portion of RTW, Dillon felt the issue has to be looked at, in general. He isn’t certain the Constitution makes every bill that contains a spending measure exempt from a referendum, as seems to be today’s interpretation. Republicans put one in the new emergency manager law they passed to replace the one voters rejected Nov. 6.

“At some point I think somebody is going to challenge the actual language in the Constitution and find out if it just applies to bills that have appropriations for state departments or to bills that have a single appropriation to implement one statute,” he said.

“Usually, appropriation bills are only good for one year. That’s why people are hesitant to make policy in appropriation bills because it has to be reauthorized every year. I think that’s a bigger question, apart from Right to Work, using appropriations to make bills referendum proof.”

Dillon also pointed out that RTW supporters aren’t without an option to counter a statutory initiative. “If the Legislature doesn’t act, they do have an opportunity to put an alternative on the ballot, too. You could have a ballot with a choice between two issues, which could be confusing. So that’s one of the things they could do,” he said.

At this point, Dillon said he hasn’t participated in any discussions regarding the action RTW opponents might take. “But, ultimately, I think something is going to be done by the opponents of Right to Work,” he said.

Dillon was the only Kent County legislator who voted against RTW, and the comments he made on the House floor the day the measure was voted on went viral on YouTube. A portion of his remarks focused on the closed process the GOP used to get the legislation passed.

“This is where Democracy goes to die today,” he said. “Why can’t you take this to the voters?”

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