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AG Nessel says she's not the 'proper defendant' in lawsuit taking aim at adopt-and-amend

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Posted at 5:07 PM, Jun 07, 2021

LANSING, Mich. — Michigan Attorney General Dana Nessel filed a motion Monday in response to a lawsuit that argues for an increase in the state’s minimum wage and appropriate paid sick time.

The case challenges the constitutionality of two laws 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, according to a news release.

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.

Nessel joined the side of her office that argued that the process, and thus the new laws, were unconstitutional.

Ultimately, the Supreme Court declined to issue an advisory opinion.

The current lawsuit places the question of the constitutionality of the laws before the courts again, with Nessel being named as a defendant based on the opinion rendered by her predecessor.

But her office says Nessel is “not a proper defendant” and has filed a motion to dismiss on that basis.

Nessel argues in the motion filed Monday that 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, Nessel argues she is not the correct party against whom to bring any of the complaint’s three counts.

“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 this 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.”

Read the full motion filed here.