The Building Tradesman Newspaper

Friday, January 25, 2019

Lawsuit to reset prevailing wage law on hold in courts

By Marty Mulcahy, Editor

LANSING - A union-backed lawsuit that seeks to declare invalid the citizens initiative which led to the repeal of the Michigan Prevailing Wage Act last year enters the new year "in a holding pattern" in the courts, said Michigan Building and Construction Trades Council President Steve Claywell.

The union-backed Protect Michigan Jobs (PMJ) has asked the state Court of Claims and the State Court of Appeals to declare that the citizens initiative and legislature's process that led to the repeal of the state's prevailing wage law violates the state constitution.

 PMJ and the Michigan Building and Construction Trades Council are seeking a permanent injunction against the enforcement of Public Act 171, which was enacted in June by the state Legislature after a successful petition drive by a front group for the ABC-Michigan called Protect Michigan Taxpayers. Having gained enough petition signatures to repeal prevailing wage in Michigan, the sponsors moved the repeal question to the state Legislature, as the state Constitution allows. There, GOP lawmakers approved the prevailing wage repeal language in the petition, giving "immediate effect" to PA 171.

The lawsuit seeking an injunction finds several constitutional issues with the law's passage. For one, the "immediate effect" language effectively took away the ability of unions to conduct, in a timely manner, a counter petition before the March 20, 2019 deadline to invoke the referendum.

In another potential legal problem area, a section of the new law provides a $75,000 appropriation to the state's Department of Licensing and Regulatory Affairs "for the purpose of implementing and communicating information about the repeal" of the prevailing wage law. However, the next section of the new language repealing the Michigan Prevailing Wage Act says if the act conflicts with the state or U.S. Constitution or federal law, it is "severable from the remaining portions of the act." The lawsuit claims that state legislative rules say "no bill shall include . . . a severing clause" and such should be deleted from bills.

In addition, in its lawsuit PMJ/Michigan Building and Construction Trades Council argues that 46 House members indicated they wanted a roll call of the repeal vote, but Speaker Pro Tempore Lee Chatfield (R-Levering) conducted a "rising" vote instead. (A rising vote is when the number of lawmakers voting on each side stand, or "rise"). The lawsuit says Chatfield declared immediate effect with the "unsupported conclusion that two-thirds" of lawmakers supported immediate effect. And if the "immediate effect" portion of the law is unconstitutional, then the PMJ lawsuit said state law requires the invalidation of the rest of the law.

"We continue to be in a holding pattern for the ruling on our case in the Court of Appeals," Claywell said in an update to building trades council affiliates. "Thus far, we have received favorable rulings on the motions to challenge and reconsider."