January 22, 2021

Contact: LuAnne Kozma, campaign director, Committee to Ban Fracking in Michigan, 231.944.8750 [email protected]

Matthew Erard, attorney for Committee to Ban Fracking, 248.765.1605    [email protected]

Ellis Boal, attorney for Committee to Ban Fracking, 231.547.2626   [email protected]

Committee to Ban Fracking in Michigan ballot initiative campaign's case over signature-gathering law escapes judicial review after Michigan Court of Appeals, in a split decision, again declines to hear the case in fifth legal challenge by plaintiffs

Dissenting judge concludes that 180-day signature gathering law is unconstitutional

Committee will seek leave to appeal in Michigan Supreme Court

Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), has for the last five years, in five separate litigations, sought judicial review of the signature-gathering law limiting circulation to 180 days. Yesterday the Committee heard from the Michigan Court of Appeals.

In a split 2-1 decision, the Court majority opinion held that the Committee's only recourse for challenging the 180-day law and the Board of State Canvassers's decision based on it, rendering the petition signatures insufficient, was in the Michigan Supreme Court. This is due to a new law passed during the 2018 Lame Duck legislature (MCL 168.479), which the majority says intended the Supreme Court to be the only court with jurisdiction to rule in such matters.

After recapping the Committee's unconstitutionality argument, the majority did not rule on it.

Dissenting judge Douglas Shapiro did analyze the 180-day law and opined that it posed an absolute limit that is "plainly violative of the state Constitution. It is a blatant attempt by the Legislature to interfere with the people's self-retained right to initiate legislation." 

Last summer, the Board of  State Canvassers decided that the Committee's 271,000 signatures were insufficient based solely on the 180-day law (MCL 168.472a) making many of them ineligible for canvassing because they "shall not count" even if valid. The Committee filed a legal challenge in the Michigan Supreme Court as MCL 168.479 allowed it to do. In July the Supreme Court declined to take the case without stating a reason, as is its prerogative.

The Committee immediately took its challenge to the Court of Claims, a lower court which according to MCL 600.6419 has sole jurisdiction over declaratory relief such as a challenge of a law's unconstitutionality. The Court of Claims rejected the Committee's lawsuit, saying the Supreme Court had sole jurisdiction.

The Committee urged the courts, in all of its legal filings since filing signatures in 2018, to decide the cases in time for the measure to appear on the 2020 ballot, if the Legislature itself did not enact it. 

The time crunch was caused when the Secretary of State refused the Committee's petition sheets at the door when filing them in 2018.

The delay continued through a 17-month legal fight, which the Committee won last April in the Michigan Court of Appeals. The Court held that the filing did in fact occur in 2018 and in time for the 2020 election, and that not treating the Committee's signatures as filed in 2018 would "punish petition sponsors and the electorate for unlawful actions by election officials."

The Constitution in Article 2 Section 9 describes the process for statutory initiatives like the Committee's (amending a statute, not the constitution) to first be presented to the Legislature which has 40 days in which to enact or not enact it into law. Only if not enacted during those 40 days would the proposal reach the voters at the "next general election" after the conclusion of the 40 days.

The Court's Dissenting Opinion

In addition to concluding that MCL 168.472a is unconstitutional, Judge Shapiro dissented from the majority (Judges Cavanaugh and Jansen) strongly disagreeing that the new lame duck law could possibly mean that the Supreme Court had sole jurisdiction, writing  "I cannot conclude that in amending MCL 168.479 the Legislature intended to forever bar a declaratory-judgment action as to the constitutionality of MCL 168.472a, and I cannot approve of the Catch-22 allowed for by the majority that effectively precludes judicial review."

Shapiro pointed out the Committee has raised the constitutional issue since 2016 and the court has yet to provide an answer, saying no further delay is jurisdictionally required.

The Committee's Response

The Committee will seek leave to appeal in the Michigan Supreme Court and will make the point that laws cannot be shielded forever from being judicially reviewed.

"To reach its decision on whether we could only file a legal challenge in the Supreme Court, the court said an impossible thing, that the word 'may' actually meant the word 'shall,' which defies logic and all legal decision-making," said Ellis Boal, one of the Committee's two attorneys, in reaction to the decision.

Matthew Erard, the Committee's other attorney added, "One flaw in the court's reasoning is that the Legislature is barred constitutionally from expanding the Michigan Supreme Court's original jurisdiction."

"It is these 271,000 voters' signatures on this ballot initiative petition that is to be brought to the Legislature for consideration and if necessary, the voters, that have qualified us to bring the constitutional question for judicial review, and that repeatedly have not been treated fairly by the State or the courts, and that's what the Committee is fighting for," said campaign director LuAnne Kozma.

She added,  "All Michiganders' right to statutory initiative and the Constitutional process described in Article 2 Section 9 is at stake in our case and so far it has not been followed."

The Michigan Court of Appeals majority decision can be downloaded here.

Judge Shapiro's dissent can be downloaded here.

Case filings for Committee to Ban Fracking in Michigan v Board of State Canvassers, (case # 20-000125-MM) can be found on the Committee's website here:

https://www.letsbanfracking.org/lawsuit

More background:

Starting in 2016, a series of maneuvers by the State have continually blocked the Committee from getting a court to review the constitutionality of the law restricting signature-gathering for ballot initiatives to 180-days (MCL 168.472a).

In 2016, while the Committee was in the midst of collecting signatures and had collected over 200,000 but not yet the required 250,000 signatures, the Committee sued seeking a declaratory judgment. It wanted to know if its volunteers should keep collecting signatures because the 180-day law was unconstitutional, or start over with a new petition if the court found the law was constitutional. The Governor signed a new version of the law just days later, making the 180-days an absolute time limit and not allowing any signature--even valid ones by registered voters-- beyond the 180 days to count. 

That case went to the Court of Appeals which ruled in 2017 the case was not yet ripe because the Committee had not yet collected all its signatures, filed them and had an adverse ruling of insufficiency against it, thus there was no "actual controversy" until it did so.

State election officials told the courts that once the Committee collected the additional signatures it required, it will be able to file them.

Yet, in 2018 when the Committee did just that and filed 271,021 signatures, the Secretary of State refused them at the door, claiming a reference to the 2016 election on the front made the petition "incorrect."

The Committee sued in the Court of Claims in late 2018, arguing that the front of the petition met all statutory requirements and the petitions should have been accepted when the Committee filed them, and the 180-day signature-gathering law was unconstitutional. 

17 months later, in April 2020 the Court of Appeals ruled for the Committee regarding the front of the petition, yet did not reach the constitutional question. The Court ordered the petitions in the door and ruled the filing date was 2018, and to hold otherwise would "punish both petition sponsors and the electorate for unlawful actions taken by election officials."

Further delays by the Bureau of Elections and Board of State Canvassers, of which Shapiro made note, resulted in a wait to June 8 when the Canvassers found the petitions "insufficient" solely based on the 180-day l aw.

A new law passed in 2018 allowed ballot question committees to file an appeal of a Canvasser decision over the sufficiency of a petition straight to the Michigan Supreme Court, bypassing the lower and appellate courts. The Committee to Ban Fracking was the first ballot question committee to do so when it filed that appeal on June 10. 

On July 2, the Supreme Court declined to rule, is its prerogative.

On July 6, the Committee returned to the Court of Claims.

On July 20, the Court of Claims rejected the Committee's suit.

On July 22, the Committee filed this appeal with Michigan Court of Appeals.

On December 8, 2020, the Michigan Court of Appeals heard oral argument. You may watch the argument on the Court's YouTube channel at the link below. The Committee is the last case on the video.

https://www.youtube.com/watch?v=4G-gAxKruk0

The Committee's proposal would ban horizontal fracking and frack wastes statewide, and amend Michigan's fundamental 1930s-era oil-gas policy which requires the Department of Environment, Great Lakes and Energy regulators to "foster the development" of the oil and gas industry "along the most favorable conditions. . . with a view to the ultimate recovery of the maximum production" of oil and gas. The initiative would substitute a requirement that regulators protect climate and other environmental values. 

The Committee to Ban Fracking in Michigan's website is: 

www.letsbanfracking.org

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