July 16, 2020
Contact: Committee to Ban Fracking in Michigan

PRESS RELEASE July 16, 2020: More briefs filed in ban fracking lawsuit

FOR IMMEDIATE RELEASE

July 16, 2020

Contact: LuAnne Kozma, campaign director, Committee to Ban Fracking in Michigan, 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

 

More briefs filed in ban fracking campaign lawsuit

Committee's fight to get on 2020 ballot now in its fifth legal action

Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), filed a reply brief to the State's opposition brief in the Michigan Court of Claims today.

Late last week the case was reassigned to Judge Christopher Murray, who issued an order on Monday to compel the State to file a reply by Wednesday and the Committee in less than 24 hours after the State's filing.

The Committee's lawsuit seeks 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.

The case filings for Committee to Ban Fracking in Michigan v Board of State Canvassers, (case # 20-000125-MM) can be found on the Committee's website here:

https://www.letsbanfracking.org/lawsuit

The State's case

In the State's opposition brief yesterday, it asserted the election law is constitutional and the State would suffer "harm" if an injunction were granted allowing all of the Committee's signatures to be counted and the law held unconstitutional, and conversely that the Committee would suffer "no harm" and could just collect signatures all over again.

The State again made the sophistical claim that the time restriction is not really a time restriction and that petitions can be circulated for "any duration of time," and that there is "no curtailment" of the right to invoke the initiative. The State claimed the Committee had no right to be in the Court and that the Supreme Court had already litigated the merits of the case.

The State again made the false allegation that the Committee's chairperson and one attorney submitted "duplicate" signatures, providing an exhibit that proved the exact opposite.

The Committee's case

The Committee, in response today, gave substantive reasons why the higher court's actions had no bearing on the present lawsuit, and that a law that gave Committees the right to seek mandamus in the Supreme Court did not restrict the Court of Claims' jurisdiction to hear this case.

The State, the Committee said, after having successfully contended that no challenge to the 180-day law could be ripe prior to or while a Committee collects signatures, now claims that a Committee cannot challenge the law after submitting signatures either, creating a catch-22, shielding the 180-day law from ever facing a constitutional challenge by any litigant in any court.

On the issue of harms, the Committee says its harms outweigh the State's, and if there is a constitutional violation, the public interest "militates in favor of injunctive relief."

The Committee emphasizes it already met the burden of obtaining the required number of signatures and that the time limit law is an additional hurdle that is not permissible by the constitution or court precedents. The object of any legislation for a self-executing provision of the constitution, according to case law, is "to further the exercise of constitutional right and make it more available," whereas the 180-day restriction only operates to "curtail the rights reserved."

More background:

On July 2, the Michigan Supreme Court declined to take the Committee's mandamus appeal of a June 8 Board of State Canvassers decision on its signatures.

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.

17 months later, in April of this year, 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 wait to June 8 when the Canvassers found the petitions "insufficient."

A new law passed in 2018 directed ballot question committees to file an appeal of a Canvasser decision over the sufficiency of a petition straight to the Michigan Supreme Court, bypassing the lower and appellate courts. The Committee to Ban Fracking is the first ballot question committee to do so when it filed that appeal on June 10.

The Committee now returns to the Court of Claims with its constitutional challenge of the signature-gathering law. The outcome of the case will affect all statutory initiatives going forward.

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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