August 27, 2020
Contact: Committee to Ban Fracking in Michigan

PRESS RELEASE: August 27, 2020

FOR IMMEDIATE RELEASE

 

August 27, 2020

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

231.944.8750

luanne@letsbanfracking.org

Matthew Erard, attorney for Committee to Ban Fracking, 248.767.1605    mserard@gmail.com

Ellis Boal, attorney for Committee to Ban Fracking, 231.547.2626   ellisboal@voyager.net

 

Michigan AG defaults on filing brief in Committee to Ban Fracking appeals case

Committee asks Court to provide remedy for 2020 ballot

New endorsements for the Committee's proposal include Dr. Mona Hanna-Attisha

Charlevoix, Michigan –Yesterday was the deadline for the State of Michigan to respond to the Committee to Ban Fracking's appeal in the Michigan Court of Appeals on its challenge of the 180-day signature gathering law. 

The State defaulted on filing a response brief.

Court rules allowed the State 35 days to file a response to the Committee's appeal brief.

The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), sued in the state Court of Claims earlier this summer to challenge the constitutionality of the law restricting petition signature-gathering for ballot initiatives to 180-days (MCL 168.472a), and the Board of State Canvassers' decision based on it. 

That suit followed an earlier appeal to the Michigan Supreme Court as required by a law, but the court declined to take up the mandamus claim about the Canvassers' decision.

The issue of the constitutionality of the law restricting signature-gathering has not yet been reviewed by any court.

"'Where there's a right, there's a remedy,' which means we have the right to judicial review of the constitutionality of the 180-day signature gathering law. We can't be 'too early' for that review in 2016 before filing our signatures and 'too late' in 2018 after filing signatures," said LuAnne Kozma, the Committee's campaign director.

The Committee asks the Court to provide a remedy that would allow the proposal to appear on the 2020 ballot. The Committee filed the signatures in time for this year's election nearly two years ago.

The Committee says the State ran out the clock on decisions regarding the petition, necessitating a court remedy that would allow for a shorter than 40-day period for the Legislature to act on the proposal, citing court precedent for such a decision. The Committee also asks the court to rely on the raw count already made by the Board of State Canvassers, since the time for sampling has long passed.

The State argued in the lower court that the Committee does not have the right to pursue justice in the Court of Claims since the Committee already sued in the Supreme Court over the Canvassers' decision on their petition, and the Supremes decided not to act. 

When the Committee sued in 2016 first asking for this review and had not yet filed signatures but had collected 207,000 of the approximately 250,000 required, the State replied that the Committee's claim was not yet "ripe," and to ripen it, it would need to collect the "additional signatures required" and file the petitions. The Courts agreed.

But when the Committee did exactly that and filed over 271,000 signatures on November 5, 2018, the Secretary of State  rejected the petitions at the door, an unprecedented move. The State then defended that position in the courts for 17 months until the Court of Appeals rejected the State's position. The Court ruled in April 2020 that the Committee had indeed filed on time for the 2020 election, that its filing date was indeed November 5, 2018, and that for the State to treat the Committee's petition "otherwise, would punish petition sponsors and the electorate for unlawful actions by election officials."

Yet the State's delays continued after the Committee's win, taking 3 weeks to decide if it should appeal, then taking until June 8 to finally make a decision that the signatures were not sufficient due to the law restricting signature-gathering to 180-days. 

"An ugly tactic the State has taken in court has been to repeatedly lie that two signatures by myself and one of our Committee's counsel were submitted in "duplicate," when the proof the State provides clearly shows they are crossed out signatures, they are not duplicate signatures. The reason was revealed in their opposition to our motion to expedite when the AG's attorneys stated the two perfectly legitimate signatures were "indicators" that cast doubt on all our signatures. This shows the bias election officials have repeatedly shown against us, not treating our petitions fairly or honestly," said Kozma.

The Committee also announces the following recent endorsers of the campaign's proposal, in addition to the current 100 endorsing organizations, individuals and businesses:

Dr. Mona Hanna-Attisha, Flint physician

Michelle Deatrick, chair, DNC Environment and Climate Crisis Council

Dana Ferguson, candidate for US Congress

Karen Majewski, mayor of Hamtramck

American Human Rights Council, Dearborn

Anishinaabek Caucus, Michigan Democratic Party

Center for Biological Diversity

Coalition to Oppose the Expansion of US Ecology

Environmental Caucus, Michigan Democratic Party

National Lawyers Guild Environmental Justice Committee

Washtenaw 350.org

 

MORE BACKGROUND ON MCL 168.472a:

The Committee says the law restricting signature gathering is unconstitutional for statutory initiatives under Article 2 Section 9 of the 1963 Michigan Constitution because it is a self-executing provision which, under a previous Supreme Court precedent, Wolverine Golf Club v Secretary of State, "grants the legislature no authority to impose additional restrictions on the time periods for circulation and signing."

In that constitutional provision, the right of statutory initiative is a power the People reserved to themselves to propose laws and to enact and reject laws. This is often referred to as "direct democracy."

The signature gathering law was amended in 2016 to stop the Committee to Ban Fracking, and now reads "The signature on a petition that proposes an amendment to the constitution or is to initiate legislation shall not be counted if the signature was made more than 180 days before the petition is filed with the office of the secretary of state."

The Committee's complaint describes how in 1974, a year after the law was first enacted in a different version, an attorney general opinion concluded the 180-day restriction was unconstitutional for both statutory and constitutional amendment initiatives. The law was enacted to prevent a proposal by the Legislative Salary Amendment Committee from reaching the ballot, which sought to restrict legislators' salaries and pensions.

The Wolverine Golf Club decision  underscored the AG opinion's reasoning and conclusion, that a 180-day restriction was not a "constitutionally permissible implementation" of art 2, § 9, stating: "It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision."

A 1986 court decision, Consumers Power Co v Attorney General, ruled the other way, only narrowly for just constitutional amendment petitions under art 12, § 2, and does not apply to statutory initiatives under art 2, § 9. It was nonetheless erroneously applied to both types of petitions by the State afterward, an unfounded position, the Committee says, which was acknowledged by the former Director of Elections as grounded entirely on the bureaucratically-intuited "feeling that if it's good for one, it's good for the other."

When the law was amended by Public Act 142 of 2016, it again imposed a curtailment of the citizens' right of initiative, this time imposing a definite time period, and not allowing perfectly valid signatures outside the time period to "count" in the 8% signature requirement described in the constitution.

The Wolverine Golf Club decision held that for constitutional provisions that are self-executing, any supplemental legislation "must be in harmony with the spirit of the Constitution and its object to further exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified."

The Committee to Ban Fracking in Michigan'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 legal filings for Committee to Ban Fracking in Michigan v  Board of State Canvassers, and more information about fracking in Michigan and the Committee to Ban Fracking in Michigan are available at:

www.letsbanfracking.org

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