Michigan Supreme Court – Mothering Justice v. Nessel Amicus Brief Filed

On November 1, the State Democracy Research Initiative’s faculty co-directors Miriam Seifter and Rob Yablon submitted an amicus brief with four other legal scholars in Mothering Justice v. Nessel, a Michigan Supreme Court case with big implications of direct democracy.

The case considers whether the Michigan Legislature can thwart a ballot initiative by adopting an initiative proposal, which prevents the proposal from going to the voters, and then immediately amending the law so it doesn’t operate as its proponents intend. In July 2022, a state trial court held that the “adopt and amend” tactic violates the Michigan Constitution—specifically Art. 2, Sec. 9, in which the people of Michigan reserved to themselves the power to propose, enact, and reject laws through the initiative and referendum. In January 2023, the state court of appeals reversed the trial court’s decision, ruling that state constitution does not prohibit the “adopt and amend” maneuver. The plaintiffs appealed to the Michigan Supreme Court.

The amici brief urges the Michigan Supreme Court to reverse the court of appeals decision and hold that “adopt and amend” contravenes the Michigan Constitution’s core commitment to democracy. It notes that courts in other states have rejected similar tactics.

The group of legal scholars includes Nicholas Bagley (University of Michigan Law School), Jessica Bulman-Pozen (Columbia Law School), Justin Long (Wayne State University Law School), and Glen Staszewski (Michigan State University College of Law). The group previously filed amici briefs in this matter urging the Michigan Court of Appeals to affirm the trial court’s decision and later urging the Michigan Supreme Court to grant the plaintiffs’ application for leave to appeal the Court of Appeals’ decision.

Senior Staff Attorney Derek Clinger contributed to this brief.