November 4, 2019

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, 248.767.1605    [email protected]

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

Committee to Ban Fracking in Michigan files brief in Michigan Court of Appeals to get on 2020 ballot

Group says rejection of 270,962 voter signatures at the door and lower court did not follow the constitution

Charlevoix, Michigan – A year ago, the day before Election Day 2018, the Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), 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 Committee put the petition sheets in secure records storage and sued last December. Secretary of State Jocelyn Benson upheld the previous secretary's unheard of decision and sought dismissal of the case. In July, a Court of Claims judge ruled that the rejection was proper because of a reference on the front of the petition to the 2016 election. The Committee filed for appeal.

Today the Committee to Ban Fracking in Michigan filed its appeal brief in the Michigan Court of Appeals, asking that it reverse the lower court and order the Secretary of State to accept the signatures for canvassing as filed on November 5, 2018.

The Committee argues the decision by the Secretary, and the decision by Court of Claims Judge Christopher Murray, ignored the Michigan constitution's clear instruction in Article 2 Section 9 of which election, if any, a statutory initiative petition is to be voted on as the "next general election" after the Legislature has a 40-day period in which to enact or not enact a proposal. If not enacted, a proposal goes to the vote of the people, however if enacted, there is no election at which the proposal is voted. That all happens after signatures are filed. 

"No misstatement of the constitution on the front of a petition can supersede that Constitutional process," explained LuAnne Kozma, director of the campaign and also an individual plaintiff, adding, "The Secretary's and court's decision also cut off the Legislature's constitutional duty to review our proposal, once signatures are deemed sufficient, and possibly enact it themselves."

The signatures were rejected by former Secretary of State Ruth Johnson and the Director of Elections, Sally Williams. When current Secretary Jocelyn Benson came into power last January, instead of reversing course, she upheld the decision, fighting the Committee's efforts to get on the ballot.

The disputed sentence on the front of the petition states that the proposal "is to be voted on in the November 8, 2016 General Election." Similar statements on other petitions have likewise not fully described or inaccurately described what would happen to a proposal after petitions are filed. Some have stated an election date, and then no election is held because the Legislature enacts the proposal.

When the grassroots group brought in the signatures on November 5, 2018, it was well before the statutory deadline for the statewide election in 2020. Director Williams stated that the Committee violated that law, (MCL 168.471) requiring that a statutory initiative petition must be filed with the Secretary at least 160 days before the election it is to be voted on, and the petition face said the proposal would be voted on in 2016. In effect, Williams determined the Committee was too late to file and that its petition died on June 1, 2016.

Murray's decision acknowledged that there is no statutory requirement to put any date on a petition, but because the Committee to Ban Fracking did, it therefore in effect determined the date of the election as 2016. The Committee pointed out, in so doing, the judge inexplicably ignored the clear process for determining the election outlined in the constitution.

The Committee counters that because the disputed sentence was known to all the defendants (the Director of Elections, Secretary of State, and Board of State Canvassers) at the time of the Committee's previous litigation over the petition in 2016, and because the courts accepted the defendants' position that the Committee's case then was not "ripe" yet, that the courts determined the petition was not dead, as defendants and Judge Murray now claim.

In its brief the Committee seeks to hold the defendants accountable under the legal concept of estoppel for the defendants' repeated assertions throughout previous litigation in 2016, to all three Michigan courts, “If and when [the Committee to Ban Fracking] obtain[s] the additional signatures they require, then they would be able to file their petition.” The Michigan Court of Appeals took note that the Committee was “continuing to collect signatures with the same petition sheets.” "Additional signatures" referred to the 207,000 signatures the Committee had already collected at the time of the litigation. The same petition at issue now was before the courts then.

The Committee also contends that "tendering" the signatures in 2018 constituted "filing" them. There is no legal definition of "file" in Michigan law, therefore it is required by statute to rely on common English language definitions.

The Committee's current case, as in its previous lawsuit in 2016,  seeks a ruling on the constitutionality of the law restricting the length of time for signature-gathering to 180 days (MCL 168.472a). Most of the signatures the Committee to Ban Fracking collected and tendered last year were collected more than 180 days prior to the filing. For the Committee's proposal to win a spot on the ballot, the courts will need to find that the statute is unconstitutional. While the appeals brief filed today has solely to do with getting past the hurdle of the disputed sentence on the petition face, if things go the Committee's way, it will get a chance to argue its case on the merits to challenge the 180-day restriction.

One defendant, the Board of State Canvassers, was not notified about the Committee's signatures by the Secretary, took no action, and the Board to this day has never met in private session to discuss the case with its attorneys, bringing into question whether the Michigan Attorney General even has the Board's consent to represent it.

As to when Michigan voters might be able to vote on the proposal to ban fracking and frack wastes depends on the litigation process. In order to get on the 2020 ballot, all issues and canvassing would need to be resolved by sometime next May (the 160 days-before-the-election deadline). Then the Legislature would have its 40-day shot at enacting or not enacting the proposal. Michigan courts usually expedite election cases. But should the Committee's proposal be further delayed, the election at which the proposal could be voted on could be later than 2020.

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. 

Background on the 180-day signature-gathering law can be found in previous Committee to Ban Fracking in Michigan press releases. 

The Committee secured a professional records management company to provide safe storage until the State takes possession as ordered by the Court. 

The 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

Direct link to the brief filed in the Michigan Court of Appeals today is below:

Appellants' brief 11/4/2019

Appellants' appendix 11/4/2019 (download in 3 parts)

Some highlights of the Committee to Ban Fracking's arguments are below: 

* Count I, that MCL 168.472a, the 180-day signature gathering restriction, violates the Michigan Constitution under the doctrine of Wolverine Golf Club v Secretary of State, is not before the court at this time

* Count II, that the Secretary is estopped from rejecting the signatures since she said in previous litigation that the Committee will be and would be able to file the petition. The Court erred by changing the meaning to "the Committee could attempt to file." Judicial estoppel applies to positions argued successfully by a party in a previous court, whether the position is legal or factual. The Court of Appeals has used judicial estoppel on behalf of a plaintiff in the past.

* Count III and Count IV, alleged violations of the Michigan Constitution Article 2 Section 9 (on how indirect statutory initiatives work) and MCL 168.471 (filing petitions 160 days before election), respectively, and are argued together. 

• The Court went against its own precedent when it gave the Secretary unauthorized power allowing her to make a judgment on the face of the petition. 
• The decision also allowed the Secretary to place an "additional obligation" and "undue burden" on the self-executing provisions of Article 2 Section 9, which is not allowed as held by Wolverine Golf Club, a Michigan Supreme Court decision.  
• The Court cited no precedent and erred when it said: "...It matters little whether this reference [to the 2016 election on the sheets] need not have been included on the petitions. It was included and it was erroneous." 
• The 160-day statute is open ended and a proposal can always appear on an upcoming ballot. 
• If there is to be any election at all, the date is determined by the Constitution as "the next general election" after the Legislature fails to enact the proposal within a 40-day period after it receives the proposal after the Board of State Canvassers has certified the signatures. Neither the Secretary nor the Committee can determine an election date other than the one prescribed in the Constitution. 
• The petition, which had previous approval "as to form" by Board of State Canvassers, is in "strict compliance" with the statutes. Extraneous language not prohibited by statutes does not render a petition invalid. 
• "Tendering" and "filing" are synonymous and only a common English meaning can be construed, since neither term is defined in the law. 
• The Court said the sentence was both "ambiguous" and "unequivocal" but it can't be both. "Ambiguous" is the correct reading and the sentence should be disregarded. 
• Depending on how long this and potentially other litigation delays the proposal from reaching the Legislature for 40 days of deliberation, or on delays by the Secretary or Canvassers, the "next general election" could be 2022. 
• A statute directing the form of the 100-word summary of a proposal that appears on the ballot that voters see in the voting booth "need not be legally precise."

* Count V alleged denial of equal protection, whereby the State treated the Committee to Ban Fracking differently than other petition proposals that had similar extraneous sentences.

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

www.letsbanfracking.org

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