The Building Tradesman Newspaper

Friday, March 08, 2019

Prevailing wage repeal a done deal: Court rejects all union challenges

By Marty Mulcahy, Editor

DETROIT - A Michigan Court of Claims judge on Feb. 25 upheld the constitutionality of the state Legislature's repeal of the Prevailing Wage Act, rejecting a union-backed appeal.

The legal challenge by the Michigan Building and Construction Trades Council and its associated advocate group, Protect Michigan Jobs (PMJ), sought to overturn the Legislature's vote to repeal of the state's prevailing wage law, based on technical and procedural issues with the law when it was quickly moved through the Legislature in early June.

But Court of Claims Judge Cynthia Stephens rejected all arguments in the appeal, ruling that "the public act has all the bearings and trappings of a duly enacted law."

PMJ and the Michigan Building and Construction Trades Council sought a permanent injunction against the enforcement of the repeal language found in 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, Republican lawmakers approved the prevailing wage repeal language in the petition, giving "immediate effect" to PA 171.

"Obviously we're disappointed with the ruling, and we think the judge overlooked some blatant legal issues with how Michigan's prevailing wage law was repealed," said Michigan Building and Construction Trades Council Secretary-Treasurer Patrick Devlin and Co-Chair of Protect Michigan Jobs. "We're still looking at our options when it comes to considering an appeal of the decision."

The lawsuit urging the injunction alleged 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 addition, 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.

However, in her ruling, Judge Stephens said plaintiffs "have failed to identify any binding authority declaring that a statute containing a severing clause or severability clause is invalid. And this is for good reason because severing only the portion of a statute that offends a constitutional provision is the remedy of choice in this state when courts are confronted with a statute that is unconstitutional."

She also rejected the appropriation argument, writing, “Plaintiffs’ position fails to appreciate that a valid appropriation can be made by way of a public act. This proposition is neither novel nor complicated, as the Legislature has made appropriations by way of public acts that were not compiled in the Michigan Compiled Laws for decades.”

In its lawsuit, PMJ/Michigan Building and Construction Trades Council also argued that 46 House members indicated they wanted a roll call of the repeal vote, but then-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.

Stephens also rejected that argument, saying "Courts will not consider parol (given or expressed orally) evidence submitted in an attempt to show that a vote was different from that which was recorded in the journal."