July 22, 2020

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

Matthew Erard, attorney for Committee to Ban Fracking, 248.767.1605    [email protected]

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

Ban Fracking campaign appeals in Court of Appeals after lower court judge again rules against the committee 

Files motion for emergency consideration by the court this week

Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), filed an appeal today in the Michigan Court of Appeals, where it received a win this past April. The grassroots group is in its fifth lawsuit in a hard-fought legal battle seeking a declaratory judgment that the 180-day restriction on signature gathering is unconstitutional, and an injunction to ensure election officials complete the canvassing of signatures before a July 26 deadline in order to qualify for the 2020 November ballot.

Court of Claims Judge Christopher Murray ruled Monday against the Committee, dismissing the case, saying the Committee already made its one and only legal appeal to the Michigan Supreme Court and the Court of Claims does not have jurisdiction. Murray also ruled against the Committee in 2019, a decision that was overturned this April by the Court of Appeals which found that the Committee's petition met all legal requirements and the State's refusal to accept the Committee's petition at the door when the group filed in November 2018, was an "unlawful action" which "punished petition sponsors and the electorate." The Court also said the election the petition is to be voted on is the 2020 election.

The appeal brief and appendix, as well as motions for immediate consideration and emergency consideration for Committee to Ban Fracking in Michigan v Board of State Canvassers, can be found on the Committee's website here:

https://www.letsbanfracking.org/lawsuit

The jurisdiction of the courts is one issue in the case. The Committee notes the Court of Claims has exclusive jurisdiction over declaratory and equitable constitutional claims against the state, (like the Committee's constitutional challenge to the 180-day signature gathering law), and that a new statute directing persons aggrieved by a decision by the Board of State Canvassers to make their initial filings to the Supreme Court does not preclude the Committee from filing in the Court of Claims. Moreover, the Supreme Court does not have original jurisdiction over declaratory or equitable claims. 

If the Supreme Court continues to decline jurisdiction in challenges to the 180-day signature gathering law, the Committee argues "the result will be that no future committee can ever test that statute's validity even while laboring under its burdens."

The Committee also points to the unlawful decisions and delays election officials have committed that created the 11th hour decision making the court now is requested to do. In addition to declaring the 180-day law unconstitutional, the request for relief asks the Court, if the Canvassers cannot finish canvassing by July 26, to order the petition sufficient and/or bend the 40 days the Legislature has to enact or not enact the proposal. 

"Election officials have been trying to run out the clock on the Committee to Ban Fracking to prevent any court from ever hearing the constitutional challenge to the 180-day signature gathering law, and to prevent us from appearing on the 2020 ballot. If the state gets its way, no group will ever be able to challenge it, because if you can't challenge it while collecting signatures, and you can't challenge it after filing signatures either, the law is shielded from constitutional challenge," said LuAnne Kozma, the grassroots group's organizer.

She added, "In 1986, however, an energy company successfully challenged the former, less restrictive version of this law for constitutional amendment petitions. Back then the State of Michigan defended the people's the right to initiative, whereas today, state election officials and the attorney general's office are actively attacking and obstructing that constitutional right. I think it's a crisis in democracy."

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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).

Four years ago, 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 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.

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 right away for immediate consideration in the Court of Appeals. That case for mandamus was turned down with no opinion.

The Committee sued again, 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. 

In April of this year, 17 months after the petitions were refused at the door, 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 back-dated to 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 resulted in a 39-day wait to June 8 when the Canvassers found the petitions "insufficient." 

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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