PRESS RELEASE: June 10, 2020
FOR IMMEDIATE RELEASE
June 10, 2020
Contact: LuAnne Kozma, campaign director, Committee to Ban Fracking in Michigan www.letsbanfracking.org
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 suit in Michigan Supreme Court to get on 2020 ballot
Challenges the constitutionality of the law restricting signature gathering
Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), sued in the state Supreme Court today to appeal a decision by the Board of State Canvassers and challenge the constitutionality of the law restricting petition signature-gathering for ballot initiatives to 180-days (MCL 168.472a).
The Board of State Canvassers rejected the Committee's petition Monday in a 4-0 decision certifying it had an insufficient number of signatures to qualify for placement on the ballot, based on the signature gathering limit.
The Committee filed 271,021 signatures with the Secretary of State on November 5, 2018, only to be told the petition sheets were "incorrect" and the filing was refused. The Committee sued and won a decision in the Michigan Court of Appeals 17 months later which ruled the petition front met all legal requirements, the Secretary's action was "unlawful," signatures must go in the door for canvassing, and election officials should treat the signatures as filed in 2018, with the 252,523 signature requirement in effect at the time. The court added, "To hold otherwise would punish petition sponsors and the electorate for unlawful actions taken by election officials."
Most of the Committee's signatures were collected more than 180 days prior to the filing.
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, headed by Lee Beckett, from reaching the ballot, which sought to restrict legislators' salaries and pensions.
The Wolverine Golf Club decision fully 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's complaint asks the court to declare MCL 168.472a unconstitutional and order the Canvassers to canvass all the signatures, and complete final determinations by the deadline of July 26, 2020. This statutory deadline allows the Legislature its constitutionally required 40 days to enact or not enact the proposal. If not enacted, it would go on the ballot for voters to decide at the next general election on November 3, 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.
The legal filings for Committee to Ban Fracking in Michigan v Board of State Canvassers (Case # 161453), and more information about fracking in Michigan and the Committee to Ban Fracking in Michigan are available at the Committee's website:
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