April 3, 2020

Contact: LuAnne Kozma, campaign director, Committee to Ban Fracking in Michigan www.letsbanfracking.org

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 wins in Court of Appeals 

Court says Secretary of State acted unlawfully when she rejected the petitions, and petitions are remanded to Secretary of State and Board of State Canvassers for canvassing

Charlevoix, Michigan –The Michigan Court of Appeals decided unanimously in favor of the Committee to Ban Fracking in Michigan yesterday, reversing the lower court's decision and remanding the Committee's 270,962 petition signatures to the Secretary of State who shall accept the signatures for filing and forward it to the Board of State Canvassers for canvassing as required by the statute.

At issue was the front of the petition bearing a 2016 election date, a fact that the State knew about all throughout litigation with the Committee in 2016-17 when the State said to all three Michigan courts, the Committee "may continue to circulate their petition without any interference. . . If and when [the Committee] obtain[s] the additional signatures they require, they will be able to file their petition."

The day before Election Day 2018, the Committee brought 270,962 signatures to the Bureau of Elections in Lansing, only to be told the petition sheets were "incorrect" and all signatures were rejected.

The State argued in briefs that the 2016 election date on the front meant the petition had a fatal defect, that the election was only in 2016, and that the law that campaigns must file signatures "at least 160 days before the election at which the proposed law would appear on the ballot if the legislature rejects or fails to enact the proposed law," "contemplates" that initiative sponsors must "indicate in some manner" an election date. The State also argued that the Committee didn't actually file because of the rejection.

The Court didn't buy any of that, stating "Because the Director [of Elections] wrongly refused to accept the filing, the petition must be treated as having been filed on that day. To hold otherwise wouldpunish petition sponsors and the electorate for unlawful actions taken by election officials. Thus, the petition must be treated as having been filed on November 5, 2018." (page 5 of the COA Decision, emphasis added)

One of the two attorneys for the Committee, Ellis Boal, observed "It is unusual for a court to be so angry at the litigants before it. But the defendants are election officials. The first line of their brief said our case was just a 'maneuver.'"

The Court ruled the petition was "facially compliant with all statutory requirements." It also ruled the lower court "erred in concluding that the inclusion of an expected election date in the summary meant that the initiative could only be voted on that date. That was legal error because it is statuary law, not the circulator's intent, that determines when an initiative is to be voted on." 

"Given that initiative petitions are not required to state the election at which the proposed law will appear, we fail to see why the reference to an already-passed election should be the date from which the 160-day period is calculated. By statute, the petition may not be voted on in an election less than 160 days away, and so, whatever the petitioner's intent, the relevant election date is the next one that is at least 160 days away." (pp. 3-4)

The Court did not rule on the issue of the unconstitutionality of the law restricting signature-gathering to 180 days. (MCL 168.472a). The legislature originally passed that law to stop a ballot campaign in the 1970s that was seeking to restrict legislators' pay and pension increases. The leader of that campaign, Lee Beckett, successfully sought an opinion from Attorney General Frank Kelley who made the law inoperable by saying it was unconstitutional, and voters had 4 years to collect signatures, between gubernatorial elections. In 2016, lawmakers enacted a new, even stricter version of the law in order to stop the Committee to Ban Fracking and the MI Legalize campaigns.

The Committee's signature gathering took place during a 3 year period between 2015 and 2018. 

"That issue is now in the hands of Attorney General Dana Nessel." said LuAnne Kozma, campaign director for the Committee. "She said to us while running for election that she would issue an opinion that renders that law unconstitutional. We expect her to follow through on that promise."

The Committee put the petition sheets in secure professional records storage. 

As to when Michigan voters might be able to vote on the proposal to ban fracking and frack wastes depends on several things possibly holding up the process.

Kozma noted "We hope that the Secretary and Director of Elections will cease, as the court pointed out, "punishing the electorate" by any further delays on their end."

"Restrictions imposed by the pandemic might prove difficult, such as getting the signatures into the Secretary's office, and getting the other wheels of government to turn, such as the canvassing of signatures, Board of Canvassers meetings, as well as the Constitution's directive that the Legislature meet for 40 days to enact or not enact the proposal. We are going to take this one step at a time, under the circumstances." said Kozma.

The 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. 

Legal filings for Committee to Ban Fracking in Michigan v Secretary of State, Director of Elections, and Board of State Canvassers, (Case No. 350161) are available on the organization’s website at: 

https://www.letsbanfracking.org/lawsuit

For more information about fracking in Michigan and the Committee to Ban Fracking in Michigan: 

www.letsbanfracking.org

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