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A Better Partnership
August 28, 2012

COA Opinion: The November ballot will include a proposed constitutional amendment protecting collective bargaining rights

As we reported earlier, the Michigan Supreme Court directed the Court of Appeals to decide whether a petition to put a constitutional amendment on the November ballot met the necessary requirements. The proposed amendment would create a right to organize and collectively bargain with a public or private employer to the fullest extent not preempted by federal law. In Protect Our Jobs v Board of State Canvassers, the Court of Appeals granted, in a divided, unpublished decision, a writ of mandamus directing that the proposal to be added to the ballot. Judge O'Connell dissented.

In the per curiam decision of Judges Owens and Krause, the majority rejected the argument that the proposal constituted a general revision to the Michigan Constitution, concluding that adding collective bargaining rights was not a fundamental change that would modify the structure and operation of Michigan's government. The majority also concluded it would be speculative to conclude that the Director of Elections would not be able to draft a summary capable of properly characterizing the proposal within the 100-word limit. Finally, addressing the issue that divided the Court, the majority concluded that the proposal would not violate MCL 168.482(3), which requires that "[i]f the proposal would alter or abrogate an existing provision of the constitution, the petition shall so state and the provisions to be altered or abrogated shall be inserted." The majority explained that in Ferency v Secretary of State, 409 Mich 569 (1980), the Michigan Supreme Court interpreted "altered or abrogated" to mean "if the proposed amendment would add to, delete from or change the existing wording of the provision, or would render it wholly inoperative," rather than merely affecting the operation of the provision. The majority concluded the proposed amendment would not add to, delete from, or change the existing wording or render wholly inoperative any constitutional provision; it would mere affect its operation. The majority observed that it would not alter or abrogate the State's express constitutional power to decide to agree to or reject terms and conditions of employment because the proposal explicitly "does not compel either party to agree to a proposal or make a concession."

In his dissent, Judge O'Connell argued that the proposed amendment would add an exception to the Legislature's authority and therefore would modify an existing constitutional provision. He also disagreed that Ferency should be applied narrowly to only wording changes, because that would allow petitioners to engage in "linguistic maneuvering to avoid complying with the form and content prescribed by law."

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