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AG Nessel Responds to Lawsuit Taking Aim at Adopt and Amend

LANSING - Michigan Attorney General Dana Nessel filed a motion today in response to a lawsuit that argues for an increase in the state's minimum wage and appropriate paid sick time.  

Last month, the Department of Attorney General was served with Mothering Justice, et al v Nessel. Plaintiffs' attorney is Mark Brewer of Goodman Acker, P.C. 

The case challenges the constitutionality of Acts 368 and 369 - laws that were passed by the Legislature in September 2018 related to initiative petitions to increase the minimum wage and to provide for the accrual of paid sick leave.  

The initiative petitions were originally slated to be put on the ballot in 2018 as a result of a citizen-initiated petition drive. Instead, the Legislature adopted the measures and then amended them with a simple majority. The legality of the Legislature's use of the "adopt and amend" procedure was upheld in an opinion by former Attorney General Bill Schuette and ultimately heard by the Michigan Supreme Court in 2019, pursuant to a request for advisory opinion. In the case, the Supreme Court asked the Attorney General to establish a conflict wall and appoint two sets of attorneys from the office to argue both sides of the issue. AG Nessel joined the side of her office that argued that the process, and thus the new laws, were unconstitutional. Ultimately, though, the Supreme Court declined to issue an advisory opinion. 

This current  lawsuit places the question of the constitutionality of Acts 368 and 369 before the courts once again. This time, AG Nessel has been named as a defendant in the lawsuit based on the opinion rendered by her predecessor. But she's not a proper defendant and has filed a motion to dismiss on that basis. 

In the motion, filed this afternoon, Nessel argues she "agrees with the policy arguments set forth in the Complaint. The Plaintiffs are correct to point out that the Legislature performed an unconstitutional end-run around the initiative process in its lame-duck 'adopt and amend' gambit.  Nevertheless, the Attorney General seeks summary disposition under MCR 2.116(C)(8) because, based on the allegations in the Complaint, she is not the proper party against whom to bring any of the Complaint's three Counts." 

A copy of the motion filed for summary disposition can be found hereAdditionally, a copy of the brief filed alongside the motion can be found here

"I believe the actions undertaken by the Republican legislature to adopt and then gut the substance of the One Fair Wage and Paid Sick Leave Act were unconstitutional and undermined the will of Michigan residents," Nessel said.  "Mr. Brewer knows that the surest way to resolve this issue is by bringing suit against the State of Michigan and arguing the merits of the case in court. Instead, he chose to take an adversarial stance against an ally by suing the Department of Attorney General. Mr. Brewer's actions do not serve his clients, nor will they bring necessary resolution to this issue." 

A copy of OAG 7306 from former AG Schuette can be found here