Democrats, Republicans take fight over blocked bills to Michigan Court of Appeals

Nine Michigan bills from the last legislative session linger in limbo, passed last year but never sent to Gov. Gretchen Whitmer
A Court of Claims judge ruled House Republicans should send the bills to Whitmer but declined to enforce the ruling
Oral arguments took place before a Court of Appeals panel Tuesday, nearly eight months after the bills passed the Legislature

An ongoing dispute between Michigan Senate Democrats and House Republicans went before the state Court of Appeals on Tuesday as attorneys debated whether nine bills passed in the last term — but never sent to Gov. Gretchen Whitmer — should be forced to her desk for signature.

Hanging in the limbo are potential laws to place corrections officers in the state police pension system, require governments to pay a larger share of employee health care premiums, exempt public assistance from debt collection and allow Detroit historical museums to propose a millage.

Democrats approved the measures last year, but Republican leaders who took control of the chamber in January did not send them to Whitmer, prompting the Senate to sue.

According to the Michigan Constitution, “Every bill passed by the Legislature shall be presented to the governor before it becomes law, and the governor shall have 14 days” to decide whether to sign or veto it.

The Court of Claims ruled in February that the House had a duty to send the nine measures to the governor, writing that “all bills passed by the Legislature must be presented to the Governor within time” to review them before they take effect.

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But Judge Sima Patel declined to force the legislature to act, calling the presentation of bills “a legislative function in which the Court will not interfere,” a decision that prompted Democratic Senate Majority Leader Winnie Brinks and Republican House Speaker Matt Hall to both claim victory.

Both chambers also appealed to higher courts. The Michigan Supreme Court in April ordered the Court of Appeals to review the case.

“It needs to be very clear to the Court of Claims that they have the authority to issue” an order for the House to act, attorney Mark Brewer, a former Michigan Democratic Party chair who’s representing the Senate, said Tuesday in oral arguments before a three-judge panel in Detroit.

But attorneys for House Republicans maintained that courts can’t control the Legislature’s actions due to separation of powers guarantees. And even if the courts could, the House had no duty to complete the work of a prior Legislature, the attorneys said.

Once a legislative session ends and a new Legislature has been sworn in, the “bills lapsed” because “there was a step that was unfinished,” argued Kyle Asher, a lawyer for House Republicans.

But presenting approved legislation to the governor is an “institutional duty,” Brewer countered.

The legal consequences could be weighty: The Senate is effectively arguing that courts should be able to tell the Legislature what to do if the body is not performing what they argue is one of its core duties.

But if judges decide in favor of the House, they could grant legislative leaders the power to effectively pocket bills they don’t want to reach the governor, blocking the final step of the legislative process.

The dispute has strained relationships in the Michigan Legislature, where Democrats and Republicans are feuding over a state budget they must pass by Oct. 1 to avoid a state government shutdown.

Several labor unions have backed Senate Democrats in the case, arguing public employees are harmed by House Republicans’ decision to block a law that would allow unions to bargain for employers to pay up to the full cost of employee health plans.

The Michigan Education Association estimates educators and school support staff will lose out on $116 million in savings for the current fiscal year alone, according to a court filing.

Without passage of the bill, “the cost of healthcare for all public employees will reach an unsustainable breaking point,” union attorneys wrote.

But Asher, the House GOP attorney, argued it’s not up to the court to force the Legislature to act.

“This court should leave it to the Legislature to resolve its own disputes, as it’s done every other instance in the past,” Asher said.

Court of Appeals Chief Judge Christopher Murray appeared skeptical of the House’s argument in that regard.

“You keep saying this is just a(n) internal legislative issue. It’s not, because it impacts whether the governor can sign bills that were passed by both houses in the Legislature,” the judge said.

Murray suggested that by allowing the Legislature to not send bills to the governor “you frustrate or virtually eliminate the whole legislative process that we have in our Constitution.”

“There’s got to be some kind of remedy for that, and if it’s not a legal one through the courts, what is it?” he added.

Exactly why the bills were never sent to Whitmer’s desk late last year when they passed has not been determined. Former House Speaker Joe Tate, a Detroit Democrat who led the chamber at the time, has never offered an explanation.

To force the House to act, the Senate needs to convince the judges that the act of sending the bills to the governor is not an act that offers wriggle-room for deviation. Patel had ruled that function was not described “with sufficient precision and certainty as to leave nothing to the Legislature’s discretion or judgment,” a point with which Murray seemed inclined to agree.

“You’d have to exercise some discretion before you knew you could actually take it and present it to the governor” given that possibility, Murray suggested.