The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, reversing Roe v. Wade, generated a tidal wave of criticism from advocates of a woman’s “right to choose.” However, the critics ignored the fundamental difference between judicial decisions and legislation. A judicial decision announces what the law is, not what it should be. A legislative act, on the other hand, creates law. A panel of Michigan’s Court of Appeals did an excellent job of explaining the difference in Mothering Justice v. Attorney General, Case No. 362271 (January 26, 2023).
Mothering Justice addressed two voter initiative proposals brought forward through the process established by Article 2, § 9 of Michigan’s constitution. This process permits voters to force the legislature to consider laws it has not enacted. Citizens may invoke the initiative process by submitting a petition signed voters whose number exceeds eight percent of the total vote cast for governor at the last general election. Then, the legislature has 40 session days to adopt the proposal supported by the petition. If not, the proposal goes on the ballot at the next election.
The two proposals at issue addressed terms and conditions of employment. One increased the minimum wage. The other provided paid sick leave. The legislature adopted both proposals and then, after 40 days, amended them in a manner that diluted their impact. A lawsuit followed. The trial court, in this case Michigan’s Court of Claims, ruled in plaintiffs’ favor, holding the legislature’s “adopt and amend” approach violated Article 2, § 9. An appeal followed.
Judge Murray authored a well-reasoned 20-page opinion reversing the Court of Claims and upholding the legislature’s right to “adopt and amend.” The Court gave four reasons for its conclusion. First, the Legislature did all that was required by Article 2, § 9 when it adopted the initiative proposal within 40 session days after it was submitted. Second, while Article 2, § 9 prohibits the legislature from amending laws subject to the referendum process (pursuant to which voters may annul laws passed by the legislature), the same restriction does not apply to the initiative process. Third, the record of the constitutional convention supported the legislature’s right to “adopt and amend.” Fourth, in the absence of a constitutional restriction (non-existent here), the legislature has the inherent right to amend any law, regardless whether generated by the legislature itself or through the initiative process.
Mothering Justice, like Dobbs, will, predictably, be criticized by those who supported the more expansive rights conferred by the initiative proposals. Criticism may also be based on the grounds the decision is somehow inconsistent with the will of the people, or at least the eight percent who signed the petition. Judge Murray took the time to attempt to preempt such criticisms, noting:
Before turning to our decision, we reluctantly add a disclaimer to emphasize a point we hope is obvious, but we know is often lost by those who focus solely on the result of a court decision, rather than the analysis within that decision: the underlying policies set forth in the [proposals] at issue are completely irrelevant to our decisions. Whether “the underlying subject matter is taxes, abortions, sentencing of criminal, you name whatever that social issue is, is not relevant to this matter.” (citing Frey v. Dir of Dept of Social Services, 162 Mich App 586, 589 n1 (1987), aff’d Frey v. Dept. of Mgt & Budget, 429 Mich 315 (1987)).
Judge Murray is, of course, absolutely correct. The sitting legislature may, if it wishes, amend these laws so they are as broad as the initiative proposals, or even broader. That is the legislature’s job and prerogative. However, that is not the role judges play in our system of government.