FOR IMMEDIATE RELEASE

October 13, 2016

Contact: LuAnne Kozma, Committee to Ban Fracking in Michigan

(231) 944-8750          [email protected]

Committee to Ban Fracking in Michigan files brief in Court of Appeals to hear 180-day signature gathering case

Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), filed its opening brief in the Michigan Court of Appeals for a reversal of the decision this summer by the Court of Claims. The court had ruled the Committee’s challenge was not yet “ripe” because it had not yet filed signatures with the Secretary of State. The Committee’s appeal brief describes the reasons and court decisions that show that the case is ripe now.

On June 1, the Committee sued election officials saying the law regarding the signature-gathering time period, even with a “rebuttable presumption” about signatures older than 180 days (MCL 168.472a), is unconstitutional for statutory initiatives like the ban-fracking measure because the constitution does not have any time restrictions, nor does it allow the Legislature to restrict the people’s right to statutory initiative.  

A week later Governor Snyder signed an amendment to the law making it even more restrictive. The new version is absolute in allowing no signature over 180 days old to be counted, even if the voter’s signature is perfectly valid. 

At the time of the June 1 filing deadline for submitting signatures for putting a proposed law on the ballot in the November 2016 election, the Committee had over 207,000 signatures. The required number is 252,523.  The Committee has continued collecting signatures and plans to file them for the next statewide election in 2018.

The lawsuit seeks a declaratory judgment now so as to guide the Committee’s future conduct. Under the Michigan constitution there can be no time limit whatever on collecting signatures for a statutory initiative.

The Committee’s brief on “ripeness”

The brief notes the Court of Claims relied on old case law that was undercut in 2010 by a landmark Michigan Supreme Court decision about legal “standing.”

The brief also notes that Michigan recognizes the special importance of grass-roots initiatives being able to participate effectively. Delegates to Michigan’s 1961 constitutional convention—including George Romney who was elected as governor the following year—said this repeatedly as they enacted the constitution. 

The Committee’s brief also challenges aspersions of the Court of Claims on the Committee’s ability to collect the needed 50,000 more signatures by 2018. The Committee has an amazing documented record of efficiency. With over 800 volunteers and 900 small donors, it spent on average just 46 cents per signature. This compares to historic Michigan initiatives on other issues, whose recent averages ranged from $2.53 to $5.18.

On its third try, the Committee is on a roll, as it documents in the brief, where it almost doubled its numbers from 2013, which itself more than doubled the first attempt in 2012. 

Public opinion continues to show it is in favor of a ban on fracking, with a March Gallup poll showing 51% of adult Americans now oppose fracking, compared to 36% who favor it.

Background on the History of Initiative Law in Michigan

The Michigan Supreme Court said in 1971 “the people are the fountainhead of law in a democracy, and therefore, it is natural that the legislative article [Article 2 section 9 of the constitution] should contain a reservation by the people of the right to make laws directly, through use of the statutory initiative and referendum. The initiative and referendum provisions assure the citizenry of a gun-behind-the-door to be taken up on those occasions when the legislature itself does not respond to popular demands.”

The history of how the 180-day limitation on signature gathering came about shows an intent by the Legislators to do just the opposite, place limitations on initiatives—exactly as the amended version of the statute signed by Governor Snyder in June strictly does.

The 1963 State Constitution

In the 1963 state constitution’s article 2 section 9, the people themselves reserved the right to initiate laws directly through the initiative process. At the time of the writing of the constitution, the constitutional convention participants discussed the possibility of placing a cap of a definite number of signatures, so as to not make it too difficult for an average group of citizens to carry out the task. The framers thought that as the population of Michigan rose, the required number of signatures to obtain would be too great. In the end, the framers did not impose a cap on signatures, but there was no time limit to signature gathering.

Push-back from Voters over Legislative Pay Increases

In 1970-71, in response to the Legislators voting themselves raises and increases in their pensions, a woman from Grand Rapids, Lee Beckett, became “incensed.” Beckett began a petition drive to limit legislator pay and give voters and the State Officers Compensation Commission more power to limit compensation and pension increases. In 1971 she organized the Legislative Salary Amendment Committee. By 1973, the group had collected over 150,000 signatures. They hoped to get the proposal on the 1974 ballot. Beckett’s committee received attention in the press in 1970, 1971, 1972, 1973 and 1974, which collected signatures throughout this time. 

The Legislature lashes out with MCL 168.472a

Threatened by Beckett’s committee, the Legislature created and enacted the law in June 1973 restricting the signature-gathering period to 90 days. In July 1973 the Legislature passed it again changing the period to 180 days. Governor Milliken said 90 days was too restrictive, and extracted a promise from the legislators to change it, which they did. The law gave an opening however, that signatures older than 180-days were “rebuttably presumed” to be “stale and void” but did not put into place any specific rebuttal procedure for showing “old” signatures were valid.

Mrs. Beckett said at the time to the press, “You’d have to race like hell to get that number of signatures in 90 days… Even 180 days is too short a period in which to collect 10 percent of the total vote cast for governor. It’s an attempt to limit our constitutional rights by law. The limit infringes on the constitutional right to petition government for initiation of legislation or changes in our constitution.” (The News-Palladium, July 26, 1973, p. 10) 

Dissent by Republican legislator trying to put the death penalty on the ballot.

By January 9, 1974, Rep. Kirby Holmes, R-Utica, was working on an initiative to put the death penalty for murder to the voters in 1974. He had voted in favor of the 180-day statute but said in a news conference “I have changed my mind since last spring. . . . I thought six months would be plenty of time. It is my opinion that the imposition of the 180-day time limit . . . was in error, and indeed, unconstitutional.” 

It was further reported that Holmes would fight the time limit “on behalf of future petition drives” and that he’d have enough signatures by the April 24, 1974 deadline. His group had collected about 35,000 signatures at the time.  He said further that 180 days is a very short time, most of which must be devoted to organization rather than the petition drive itself. “It is my opinion,” Holmes said, “ that the people at the constitutional convention in 1963 . . . had no time limit such as we imposed last spring in mind. We blew it last spring.”

Attorney General Frank Kelley opinion that MCL 168.472a is unconstitutional.

On August 13, 1974, after the deadlines for submitting signatures for the 1974 election had passed, Attorney General Frank Kelley issued an opinion striking down the 180-day statute as unconstitutional. He reasoned that since the state constitution recalculates the new signature requirements each time the governor is elected, the time period for collecting signatures is the length of the governor’s term, 4 years.

1986: The Supreme Court and the Board of Canvassers

In the 1986 Consumers Power case, the Michigan Supreme Court reasoned that the purpose of the 180-day statute was not to limit the time period to 180 days but rather to “fulfill the constitutional directive . . . that only the registered electors of this state may propose” a measure. 

The decision reinterpreted the statute as constitutional only in regard to constitutional amendment petitions, under article 12 section 2 of the constitution, not statutory initiatives like the one to ban fracking, under article 2 section 9. 

During the court proceedings, the Board of State Canvassers promulgated a rebuttal procedure, which would theoretically allow the Secretary of State to count old signatures. But the Board made the rebuttal procedure essentially an irrebuttable one, requiring a committee doing a petition to prove each old signature “valid” using either an affidavit or certificate from the signer or the local clerk. This was a time before the computerized statewide voter database. As a practical matter this was impossible because the number of old signatures would be in the hundreds of thousands. In effect the Canvassers’ procedure deep-sixed the two ballots initiatives that were pending at the time, the old signatures did not count, and they did not make the ballot.

The Michigan Legalize court case

On June 1, 2016 another statutory ballot initiative committee, Comprehensive Cannabis Law Reform Initiative Committee (http://www.milegalize.com) submitted more than 350,000 signatures to place an initiative on the 2016 ballot. Ruling under the earlier version of MCL168.472a, the Court of Claims and eventually the Michigan Supreme Court denied the committee’s access to the ballot. The committee utilized the Michigan Qualified Voter File, required by state law since 1998 for validating signatures for ballot initiatives, to prove signatures older than 180 days were valid. Since January 2015 the MI Legalize committee and Committee to Ban Fracking in Michigan had hammered the Board of State Canvassers and the Legislature to update the rebuttal procedure to use the Qualified Voter File. Instead the Canvassers kept the outdated 1986 policy while the Legislature passed a bill making the law more restrictive to an absolute 180 days. The court rejected the use of the Qualified Voter File, clinging instead to the State’s outdated 1986 policy of the Board of Canvassers, insisting on affidavits by signers or local clerks—an impossible and implausible way of validating signatures. 

MI Legalize is pursuing additional legal remedies in the courts.

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

The Committee seeks new volunteers and donors to join the effort. Sign up at the Committee to Ban Fracking in Michigan’s website www.letsbanfracking.org.

Court documents in the Committee’s lawsuit and the ballot language also can be found on the website.

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