The Building Tradesman Newspaper

Friday, May 18, 2018

Prevailing wage repeal action suspended by Supreme Court

By Marty Mulcahy, Editor



LANSING - Michigan's Prevailing Wage Act is in serious jeopardy, but it received a reprieve from the state Supreme Court. 

A 3-0 vote by a Michigan Court of Appeals panel on May 11 ordered the Board of State Canvassers to certify a petition that is aimed at repealing the state's prevailing wage law. However, on May 15, the Michigan Supreme Court granted a union-backed request to suspend that appellate court order, potentially giving the high court justices an opportunity to review the case. 

"The issue presented is whether the Board of State Canvassers has a clear legal duty to certify an initiative petition despite that some of the petition circulators may have claimed fraudulent residential addresses," the appeals court ruled. "The statutory sanctions for any such irregularities do not include disqualifying elector signatures." 

The core of the legal argument is that under state law, sponsors of petitions apparently cannot be penalized with having all the signatures disqualified on a petition sheet if the circulator - the person who collected the signatures and signs the sheet at the bottom - is deemed disqualified because she provided an improper home address or otherwise broke the rules. 

The apppeals court ruling is a serious threat to the state's prevailing wage law, which assures the use of a wage standard for construction workers toiling on state taxpayer-funded projects. In states that have rescinded their prevailing wage law, construction worker wages have gone down: a study released this year after the 2015 repeal of the prevailing wage law in Indiana found construction worker wages there declined by 8.5 percent, on average.

Protect Michigan Jobs, the front group for the Michigan Building and Construction Trades Council and a group of contractor organizations, appealed the Appeals Court ruling, asking for, and getting, the stay from the Michigan Supreme Court. "Obviously we're disappointed with the appellate decision," said PMJ attorney Andrea Hansen. "In the ruling, they actually conceded that there's a violation of the law, but there's no remedy for the violation." 

The case in front of the appeals court moved quickly after it was brought by Protecting Michigan Taxpayers, the front group for the Associated Builders and Contractors - Michigan. They sponsored the petition to repeal prevailing wage, and they asked the three-judge appeals panel to overturn a ruling last month by the state Board of Canvassers that blocked a prevailing wage repeal petition from proceeding to the state Legislature.

The Canvassers on April 26 deadlocked 2-2 on whether a petition drive conducted by PMT should proceed to the state Legislature in the form of a bill that would repeal the state's 1965 Prevailing Wage Act. The tie vote did not advance the bill.

If the state Supreme Court confirms the appeals court ruling, the question of prevailing wage repeal then goes before the state Legislature, where Republican leaders have expressed confidence that they have the votes to overturn the law. If intensive lobbying by Protect Michigan Jobs successfully convinces enough GOP lawmakers not to vote on the measure, the repeal question then goes before of vote of the people on the Nov. 6 general election ballot. 

The argument before the appeals court was a simple one, according to the brief filed by attorneys for the union-backed Protect Michigan Jobs - and it was rejected by the appeals judges. 

"The narrow question before the court," PMJ's brief says, "is whether the Board of Canvassers has the authority to disqualify signatures collected by circulators who filed with the Secretary of State petition sheets containing false and fraudulent circulator certificates in direct violation of mandatory requirements of Michigan election law?"

The appeals court ruled the Canvassars have a "clear legal duty" to OK the petitions, even if there are legitimate questions about the petition circulators.

Protecting Michigan Taxpayers handed in 379,903 signatures. The Board of Canvassers' 2-2 tie came after staffers for the state Bureau of Elections recommended that after a review of a sampling of 4,443 of those signatures, 3,139 were valid (the minimum number to recommend certification in the state's sample formula was 2,954).

In its own review of the sample signatures, Protect Michigan Jobs undertook a massive effort to not only review the individual signatures, but also to examine the names and addresses of the petition circulators who signed each sheet. PMJ attorneys argued that there were enough invalid circulators' home addresses - the provided "residential" addresses as required by law included uninhabited land parcels, a UPS store, a church, and a Super 8 Motel - to easily disqualify enough signatures to invalidate the entire petition. 

Michigan Attorney General William Scheuttte's Chief Legal Counsel, Eric Restuccia, submitted a non-binding opinion on the question of the circulators. He said that invalidating a petition circulator for a wrong address or other reason does not automatically invalidate the signatures above the petition circulators' name on the petition sheet. Restuccia said the only remedy against such circulators was in the courts - even though there were zero charges filed against false circulators by the state attorney general in the ABC's first failed petition effort in 2015, which also included the submission of tens of thousands of invalid names.

"Many of the circulators who circulated the petition violated Michigan Election Law by failing to provide a residential address, signing a name other than their own or otherwise providing inaccurate information in the Certificate of the Circulator," says a brief filed by the union-backed Protect Michigan Jobs and their legal team at Hongiman Miller. "The petitioner (ABC-backed PMT) argues, based on the conclusion of Mr. Restuccia, that while there is a violation of Michigan Election Law, the only remedy is to fine and criminally prosecute PMT, its sponsor and circulators. 

"While PMJ agrees that these sanctions are warranted in this instance, particularly given that this is the second time this sponsor has come before this board with issues related to fraudulent signatures, such sanctions are clearly not the only available remedy. Otherwise (the Board of Canvassers) would be forced to certify a petition for the ballot even when it knows that the signatures were insufficient for certification. Such a result would be patently absurd and completely undermine the Board's primary function, which is to preserve the integrity of the electoral process."

The two Democrats on the state Board of Canvassers voted to disqualify the PMT petition, while the two Republicans voted in favor of accepting a sufficient number of valid signatures and moving the matter to the state Legislature. 

Patrick Devlin, a co-chair of Protect Michigan Jobs and secretary-treasurer of the Michigan Building and Construction Trades Council, called the appeals court decision "horrible." He said the decision "completely guts Michigan's election law by allowing petition circulators to conduct fraudulent activity."

Jeff Wiggins, executive director of the Associated Builders and Contractors of Michigan told the Detroit Free Press that the Board of Canvassers decision is "a clear violation of the constitutional rights of the people who signed these petitions. Unfortunately, two of the commissioners went outside what the law asked them to do and they came to the wrong decision, so we're going to court."

Andrea Hansen, attorney for the union-backed Protect Michigan Jobs, said the appeals court decision "calls into question the entire initiative process. You will no longer need honest circulators because this ruling allows people to lie about the basic fundamentals of the signature collection process. In today's case, more than one-third of the circulators were fraudulent, and this decision seriously undermines the integrity of the election law process and the procedures that have protected Michigan voters."

The Michigan Supreme Court will likely move quickly to make a decision on the case.