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declining to address constitutional issues after concluding that the Court of Claims lacked subject-matter jurisdiction
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No. 354270
01-21-2021
COMMITTEE TO BAN FRACKING IN MICHIGAN, Plaintiff-Appellant, v. BOARD OF STATE CANVASSERS, Defendant-Appellee.
Law Office of Matthew S. Erard, PLLC (by Matthew Erard) and Ellis Boal, Charlevoix for the Committee to Ban Fracking in Michigan. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Board of State Canvassers.
Law Office of Matthew S. Erard, PLLC (by Matthew Erard) and Ellis Boal, Charlevoix for the Committee to Ban Fracking in Michigan.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Board of State Canvassers.
Before: Cavanagh, P.J., and Jansen and Shapiro, JJ.
Jansen, J. In this constitutional challenge to MCL 168.472a, plaintiff, the Committee to Ban Fracking in Michigan (CBFM), appeals as of right the order of the Court of Claims granting summary disposition in favor of defendant, the Board of State Canvassers, under MCR 2.116(I)(1) on the basis of a lack of subject-matter jurisdiction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is the third appeal before this Court in this matter. In 2017, this Court summarized the facts of this case as follows:
[CBFM] is engaged in a statutory initiative campaign that seeks to include a ballot option to ban horizontal hydraulic fracturing, which is commonly known as "fracking." ... [CBFM] sought to have the issue on the 2016 ballot and, on April 14, 2015, the Board of State Canvassers approved the form of CBFM's initiative petition. On May 22, 2015, [CBFM] began circulating [its] petitions and collecting signatures. By November 18, 2015, the 180th day, [CBFM] had collected
over 150,000 signatures—but that was less than the required number of 252,523. By June 1, 2016, the deadline for filing initiative petitions for the November 2016 ballot, [CBFM] had over 207,000 signatures—but, again, that was less than the required number. [CBFM] is apparently continuing to
collect signatures with the same petition sheets in an effort to have the fracking issue on the November 2018 ballot. Accordingly, on June 1, 2016, [CBFM] filed this action [in the Court of Claims] challenging the 180-day rule set forth in MCL 168.472a .... [ Comm. to Ban Fracking in Mich. v. Dir. of Elections , unpublished per curiam opinion of the Court of Appeals, issued March 14, 2017 (Docket No. 334480), pp. 1-2, 2017 WL 993221 ( Comm. to Ban Fracking I ).]
The Court of Claims granted summary disposition of CBFM's claims in favor of the Director of Elections under MCR 2.116(C)(8) on the basis that CBFM failed to establish the existence of an actual controversy because CBFM had failed to collect the required number of signatures or submit its initiative petition to the Secretary of State. Id. at 2. This Court affirmed, concluding that "because no actual controversy ripe for declaratory relief exists, the Court of Claims lacked jurisdiction to issue a declaratory judgment and properly dismissed [CBFM's] complaint." Id. at 5.
CBFM again appealed in this Court in 2019. This Court summarized CBFM's activities following its first appeal as follows:
[CBFM] continued to collect signatures and on November 5, 2018—the day before the 2018 election—[CBFM] sought to file the initiative petition with the Secretary [of State] for a vote, if necessary, in the 2020 election. According to [CBFM], [it] had collected about 270,962 signatures. However, the Director of Elections refused to accept the petition because the front-page summary stated that it was to be voted on at the November 8, 2016 general election and that election had already passed. [CBFM] filed a complaint in this Court seeking a writ of mandamus requiring the Director to accept their legislative initiative petition. We denied the complaint. Comm. to Ban Fracking in Mich. v. Secretary of State , unpublished order of the Court of Appeals, entered November 15, 2018 (Docket No. 346280).
In December 2018, [CBFM and its director] filed the instant complaint [against the Secretary of State, the Director of Elections, and the Board of State Canvassers], challenging the Secretary's action in several respects including a claim that the Secretary had usurped the power of the Board [of Canvassers], which is the only entity charged by statute with determining the sufficiency and adequacy of an initiative petition. [CBFM] also alleged that the petition did not violate MCL 168.471, which provides that petitions must be filed at least 160 days before the election at which the proposal would be voted on. [Comm. to Ban Fracking in Mich. v. Secretary of State , unpublished per curiam opinion of the Court of Appeals, issued April 2, 2020 (Docket No. 350161), p. 2, 2020 WL 1645853 ( Comm. to Ban Fracking II ).]
The Court of Claims ultimately granted summary disposition of CBFM's claims in favor of the defendants, determining that the erroneous date listed on the initiative petition violated the statutory requirements of MCL 168.471. Id. at 2-3. CBFM appealed, and this Court reversed, concluding that because initiative petitions are not required to state the election at which the proposed law will be voted on, the petition's reference to a previous election did not preclude the question from appearing on the 2020 ballot. Id. at 3-4. Further, this Court ordered the Secretary of State to accept the initiative petition as of November 5, 2018, and forward it to defendant for canvassing. Id. at 4.
On June 8, 2020, defendant certified that CBFM's petition was insufficient because approximately 89% of the signatures had been collected more than 180 days before the petition had been filed. Therefore, MCL 168.472a barred defendant from counting those signatures. Following defendant's determination that the petition was insufficient, CBFM filed a complaint for a writ of mandamus in the Michigan Supreme Court, asserting that our Supreme Court had original jurisdiction over the action under MCL 168.479. CBFM claimed that it was entitled to mandamus or any other appropriate remedy and asked our Supreme Court to declare the 180-day rule in MCL 168.472a unconstitutional. On July 2, 2020, the Michigan Supreme Court denied the relief requested in CBFM's complaint. Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers , 505 Mich. 1137, 944 N.W.2d 723 (2020).
On July 6, 2020, CBFM filed the instant action in the Court of Claims, seeking a declaration that MCL 168.472a was unconstitutional as applied to statutory-initiative petitions. CBFM argued that the 180-day rule in MCL 168.472a unconstitutionally infringed Const. 1963, art. 2, § 9, in which the people of Michigan reserved their right to propose laws through statutory-initiative petitions. CBFM argued that unlike Const. 1963, art. 12, § 2, which concerns constitutional-amendment petitions, Const. 1963, art. 2, § 9 did not include a call for legislative regulation. Thus, according to CBFM, this omission meant that Const. 1963, art. 2, § 9 expressly limited the Legislature's authority regarding statutory-initiative petitions. CBFM argued in the alternative that even if Const. 1963, art. 2, § 9 permitted the Legislature to regulate statutory-initiative petitions, the 180-day rule was "a direct curtailment of the right and invocation-standard set forth by the Constitution." CBFM requested a preliminary injunction to require defendant to canvass the petition without excluding signatures that violated the 180-day rule.
Defendant responded, arguing, inter alia , that CBFM had not shown that it was entitled to injunctive relief because CBFM's action was "untimely and filed in the wrong court." Defendant argued that MCL 168.479 granted exclusive jurisdiction to the Michigan Supreme Court and that the Supreme Court had already denied CBFM's complaint. Ultimately, the Court of Claims granted summary disposition in favor of defendant under MCR 2.116(I)(1), opining that it lacked subject-matter jurisdiction over CBFM's claims. The Court of Claims stated:
[T]his Court lacks jurisdiction to grant the relief requested.... The plain language of [ MCL 168.479(2) ] is clear—any challenge to [defendant's] decision on an initiative petition must be filed in the Supreme Court. This language is mandatory ....
* * *
[CBFM] properly pursued its challenge to [defendant's] decision in the Supreme Court, the Court [CBFM] admitted had original jurisdiction over such a challenge. Because the Supreme Court has jurisdiction over these challenges, this Court has none and can proceed no further.
The Court of Claims dismissed CBFM's complaint. This appeal followed.
II. STANDARD OF REVIEW
CBFM first argues that the Court of Claims erroneously determined that it lacked subject-matter jurisdiction over CBFM's claims on the basis of its erroneous interpretation that the Michigan Supreme Court had exclusive jurisdiction over the claims under MCL 168.479. More specifically, CBFM argues that our Supreme Court's jurisdiction under MCL 168.479 is actually nonexclusive because MCL 600.6419 vests the Court of Claims with exclusive jurisdiction to hear claims for declaratory relief against the state and CBFM is seeking declaratory relief. We disagree and conclude that MCL 168.479 controls in this case because it is the more recent and specific statute. The Court of Claims granted summary disposition in favor of defendant under MCR 2.116(I)(1) on the basis that it lacked subject-matter jurisdiction to consider CBFM's claims. MCR 2.116(I)(1) provides: "If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay." This Court reviews de novo whether a trial court has subject-matter jurisdiction. Elba Twp. v. Gratiot Co. Drain Comm'r , 493 Mich. 265, 278, 831 N.W.2d 204 (2013). This Court also reviews de novo issues of statutory interpretation. Id.
III. ANALYSIS
Whether a statute applies in a certain case is an issue of statutory interpretation. In re Forfeiture of $176,598 , 465 Mich. 382, 385, 633 N.W.2d 367 (2001). When interpreting a statute, this Court's goal is to give effect to the intent of the Legislature. U.S. Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing) , 484 Mich. 1, 13, 795 N.W.2d 101 (2009). The language of the statute itself is the primary indication of the Legislature's intent. Id. This Court interprets statutes by considering "[t]he fair and natural import of the terms employed, in view of the subject matter of the law...." Hughes v. Region VII Area Agency on Aging , 277 Mich. App. 268, 274, 744 N.W.2d 10 (2007) (quotation marks and citation omitted). This Court must read the statute as a whole and may not read provisions in isolation. Robinson v. Lansing , 486 Mich. 1, 15, 782 N.W.2d 171 (2010).
MCL 600.6419(1) provides, in pertinent part, that, "[e]xcept as provided in [ MCL 600.6421 ] and [ MCL 600.6440 ], the jurisdiction of the court of claims, as conferred upon it by this chapter, is exclusive." MCL 600.6419(1)(a) provides, in pertinent part, that the Court of Claims has jurisdiction "[t]o hear and determine any claim or demand, statutory or constitutional, ... or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers ...."
MCL 600.6421 creates exceptions for trials by jury, and MCL 600.6440 precludes claims for which there is an adequate remedy in federal court.
Comparatively, MCL 168.479 concerns the Michigan Supreme Court's jurisdiction to hear legal challenges to any determination made by defendant and provides as follows:
(1) Notwithstanding any other law to the contrary and subject to [ MCL 168.479(2) ], any person who feels aggrieved by any determination made by the board of state canvassers may have the determination reviewed by mandamus or other appropriate remedy in the supreme court.
(2) If a person feels aggrieved by any determination made by the board of state canvassers regarding the sufficiency or insufficiency of an initiative petition,
the person must file a legal challenge to the board's determination in the supreme court within 7 business days after the date of the official declaration of the sufficiency or insufficiency of the initiative petition or not later than 60 days before the election at which the proposal is to be submitted, whichever occurs first. Any legal challenge to the official declaration of the sufficiency or insufficiency of an initiative petition has the highest priority and shall be advanced on the supreme court docket so as to provide for the earliest possible disposition.
Mandamus is a discretionary writ and an extraordinary remedy. Berry v. Garrett , 316 Mich. App. 37, 41, 890 N.W.2d 882 (2016). At first glance, MCL 600.6419 and MCL 168.479 appear to be in conflict. MCL 600.6419(1) provides that the Court of Claims has exclusive jurisdiction to hear extraordinary writs against the state or any of its departments or officers, but MCL 168.479(1) grants the Michigan Supreme Court exclusive jurisdiction over determinations made by defendant.
If there is conflict or tension between statutes, this Court must engage in judicial interpretation to harmonize the conflicting provisions and carry out the intent of the Legislature. Nowell v. Titan Ins. Co. , 466 Mich. 478, 483, 648 N.W.2d 157 (2002). "Statutes that relate to the same subject or that share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates." O'Connell v. Dir. of Elections , 316 Mich. App. 91, 99, 891 N.W.2d 240 (2016) (quotation marks and citation omitted). If there is a conflict between statutes that are in pari materia , the more recent and specific statute controls. Id.
MCL 168.479 and MCL 600.6419 are in pari materia because each statute relates to subject-matter jurisdiction. Of these two statutes, MCL 168.479 controls because it is more recent and specific. MCL 168.479 was amended by our Legislature in 2018, see 2018 PA 608; by contrast, MCL 600.6419 was amended in 2013 by 2013 PA 164. MCL 168.479 also specifically applies to requests for relief from determinations made by defendant, as in this case. Comparatively, MCL 600.6419 is broader and applies to all claims against the state, its departments, or its officers. Therefore, because MCL 168.479 is more recent and specific, we conclude that it creates an exception to the exclusive jurisdiction of the Court of Claims and controls in this case. MCL 168.479(1) provides, in pertinent part, that "any person who feels aggrieved by any determination made by the board of state canvassers may have the determination reviewed by mandamus or other appropriate remedy in the supreme court." (Emphasis added.) Courts should generally give the word "shall" a mandatory meaning and the word "may" a permissive meaning, "unless to do so would clearly frustrate legislative intent as evidenced by other statutory language or by reading the statute as a whole." Browder v. Int'l Fidelity Ins. Co. , 413 Mich. 603, 612, 321 N.W.2d 668 (1982).
CBFM argues that the permissive language in MCL 168.479(1) supports its position that it was entitled to file a later action in the Court of Claims after the Michigan Supreme Court denied its mandamus action. However, if MCL 168.479(1) did set forth a permissive invitation—as opposed to a mandatory directive—to file complaints concerning decisions by defendant in the Michigan Supreme Court, then that interpretation of MCL 168.479(1) would frustrate the legislative intent of the statute when read together with MCL 168.479(2). Specifically, MCL 168.479(1) provides that a person "may" have a determination made by defendant reviewed in the Michigan Supreme Court. However, CBFM fails to consider MCL 168.479 as a whole. MCL 168.479(2) is clear that any person challenging the determination made by defendant regarding sufficiency or insufficiency of an initiative petition is required to file a timely legal challenge in the Michigan Supreme Court. See MCL 168.479(2), which unambiguously provides:
If a person feels aggrieved by any determination made by the board of state canvassers regarding the sufficiency or insufficiency of an initiative petition, the person must file a legal challenge to the board's determination in the supreme
court within 7 business days after the date of the official declaration of the sufficiency or insufficiency of the initiative petition or not later than 60 days before the election at which the proposal is to be submitted, whichever occurs first. Any legal challenge to the official declaration of the sufficiency or insufficiency of an initiative petition has the highest priority and shall be advanced on the supreme court docket so as to provide for the earliest possible disposition.
The stated purpose of MCL 168.479 is to have our Supreme Court decide any legal challenge to the sufficiency or insufficiency of an initiative petition as promptly as possible. Reading MCL 168.479(1) and (2) together, we conclude that the most logical interpretation of the statute is that the permissive word "may" in Subsection (1) provides that the Michigan Supreme Court may review the issue, and Subsection (2) establishes the procedure to have a decision made by defendant reviewed. To be clear, the permissive language in MCL 168.479(1) does not create a choice of forum for potential litigants; it merely serves as an invitation of judicial review to an aggrieved party.
In sum, we conclude that the Court of Claims did not err by granting summary disposition in favor of defendant because the Court of Claims lacked subject-matter jurisdiction over CBFM's claims. CBFM's sole legal remedy in this case was to file a legal action in the Michigan Supreme Court, which it did. CBFM was entitled to file any legal challenge in our Supreme Court, including a request for declaratory and injunctive relief; it was not limited to its mandamus action. However, having filed an action in the Michigan Supreme Court, and the Michigan Supreme Court having denied CBFM's mandamus complaint, CBFM has exhausted its legal remedies with respect to judicial review of defendant's insufficiency determination of its initiative petition.
On appeal, CBFM also challenges the constitutionality of MCL 168.472a, known as the 180-day rule, and requests relief in time for the 2020 election. However, given our conclusion that the Court of Claims did not have subject-matter jurisdiction of CBFM's claims, we need not address these issues.
Affirmed. Defendant, as the prevailing party, is entitled to tax costs. See MCR 7.219(A).
Cavanagh, P.J., concurred with Jansen, J
Shapiro, J. (dissenting).
I respectfully dissent.
The question raised in this case is of significant public importance: whether MCL 168.472a, which limits petition signature gathering to a period of 180 days, unconstitutionally burdens the right of citizen initiative established in Article 2, § 9 of Michigan's 1963 Constitution. Despite the fact that this question has been before the judiciary since plaintiff first raised it in 2016, we have yet to provide an answer. The majority's approach would again put the question off to some other day. However, no further delay is jurisdictionally required; plaintiff's request for a declaratory judgment is proper, and the Supreme Court's 2020 order denying mandamus does not have preclusive effect because it does not state the basis for the denial or provide other guidance regarding this constitutional question. See DeFrain v. State Farm Mut. Auto. Ins. Co. , 491 Mich. 359, 369, 817 N.W.2d 504 (2012) ("An order of this Court is binding precedent if it constitutes a final disposition of an application and contains a concise statement of the applicable facts and reasons for the decision."). See also Hoffman v. Silverthorn , 137 Mich. 60, 64-65, 100 N.W. 183 (1904) (holding that when the Supreme Court denies mandamus the Court does not decide the merits of the application for purposes of res judicata).
Plaintiff sought a declaratory judgment on this issue in 2016, and we affirmed the dismissal of that action because plaintiff had not established an "actual controversy." On November 5, 2018, plaintiff submitted its petition with the required number of signatures to the Secretary of State for a vote, if necessary, in the 2020 election. The Director of Elections refused to accept the petition for filing. Plaintiff filed suit in the Court of Claims, seeking to have the petition accepted and challenging the constitutionality of the 180-day limit. On April 2, 2020, we held that the Secretary acted improperly by refusing to accept the petition for canvassing, but we did not address the constitutional question because the Board of State Canvassers had not decided whether the signatures were adequate. Comm. to Ban Fracking in Mich. v Secretary of State , 2020 WL 1645853, unpublished per curiam opinion of the Court of Appeals, issued April 2, 2020 (Docket No. 350161). Although it did not seek leave to appeal in the Supreme Court, the Board of State Canvassers still refused to accept the signatures for nearly one month and then took another month to complete the canvass, finally issuing its rejection on June 8, 2020. Having been denied ballot access, plaintiff sought a writ of mandamus in the Supreme Court per MCL 168.479. The Supreme Court denied relief without comment. Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers , 505 Mich. 1137, 944 N.W.2d 723 (2020). Plaintiff then returned to the Court of Claims, which ruled against it on July 20, 2020, on the ground that the Supreme Court had exclusive jurisdiction to hear the constitutional challenge. Plaintiff now appeals that decision.
I would therefore address the constitutional question, conclude that MCL 168.472a violates Article 2, § 9 of the 1963 Constitution, and direct the Court of Claims to issue an appropriate declaratory judgment.
I. MANDAMUS DENIAL AND JURISDICTION
The majority concludes that the Supreme Court's denial of mandamus regarding plaintiff's 2020 petition deprives the Court of Claims of its normal jurisdiction to grant declaratory judgments. However, the majority offers very little explanation for this extraordinary holding. The majority seems to conclude that because plaintiff has exhausted its claim for 2020 ballot access, it is therefore precluded from ever bringing a declaratory-judgment action on the basis of the claim that the 180-day limit is unconstitutional. However, with access to the 2020 ballot a moot question, plaintiff is no longer acting as a "person who feels aggrieved by any determination made by the board of state canvassers" as to "the sufficiency or insufficiency of an initiative petition ...." MCL 168.479(1) and (2). While access to the 2020 ballot ended with the Supreme Court's denial of mandamus, the underlying legal issue has not been resolved. Plaintiff is now in the position of a proposal committee that seeks a determination of its responsibilities to obtain ballot access in the future. The time limit for signature gathering remains a justiciable issue, and declaratory-judgment actions against the state begin in the Court of Claims. MCL 600.6419(1)(a). The majority fails to appreciate that even though plaintiff "has exhausted its legal remedies with respect to judicial review of defendant's insufficiency determination of its initiative petition," plaintiff—like any other litigant—may nonetheless bring an action for declaratory relief if there is an "actual controversy." MCR 2.605(A)(1). In 2017, we concluded that plaintiff had not established an actual controversy when it had not yet had its petition rejected by the Board of State Canvassers (the Board) on the basis of the 180-day rule:
This is not a case in which plaintiffs have collected the number of required petition signatures, albeit during a time-frame outside the 180–day rule, filed those petitions at least 160 days before the election, had those petitions rejected by defendants as insufficient, and then had their ballot proposal denied. In fact, defendants had made no
adverse claim and had taken no adverse action that impacted plaintiffs’ legal rights in any way before plaintiffs filed this action. That is, no controversy between the parties existed. Rather, plaintiffs are projecting that, in the future, if they ever collect the precise number of petition signatures required for their ballot initiative, they will be rejected by defendants because they do not meet the requirements of the 180–day rule. Thus, plaintiffs’ claim sets forth a possible—not actual—controversy that may arise in the future which rests upon contingent, uncertain events that may not occur at all and the injury plaintiffs seek to prevent is merely conjectural or hypothetical. [ Comm. to Ban Fracking in Mich. v. Dir. of Elections , unpublished per curiam opinion of the Court of Appeals, issued March 14, 2017 (Docket No. 334480), p. 4, 2017 WL 993221.]
When plaintiff sought a declaratory judgment from the Court of Claims in 2020, however, its claim was no longer hypothetical. Plaintiff had collected the required number of signatures and submitted its petition to the Board, and the Board rejected the petition because many of the signatures were collected more than 180 days before the petition was filed. Thus, plaintiff clearly had standing to seek a declaratory judgment in the Court of Claims that the 180-day rule was unconstitutional.
I would conclude that plaintiff continues to have standing to seek a declaratory judgment even though the 2020 election has passed. This is not a case in which plaintiff "only ask[s] for a declaratory judgment because it perhaps may be needed in the future ...." League of Women Voters of Mich. v. Secretary of State , 506 Mich. 561, 586, 957 N.W.2d 731 (2020). Rather, plaintiff obtained the requisite number of petition signatures once, and it intends to file again. Seeking clarification of the statute prior to another round of signature gathering is wholly consistent with the purpose of allowing a party to seek declaratory relief. Declaratory-judgment actions are of particular significance when a constitutional question is at issue. In Int'l Union, United Auto, Aerospace, & Agricultural Implement Workers of America v. Central Mich. Univ. Trustees , 295 Mich. App. 486, 493-497, 815 N.W.2d 132 (2012), the plaintiffs sought a declaratory judgment that a policy barring Central Michigan University (CMU) employees from running for office was unconstitutional even though no CMU employee had attempted to become a candidate. We held that the plaintiffs had standing, noting that the purpose of a declaratory judgment is "to enable the parties to obtain adjudication of rights before an actual injury occurs, to settle a matter before it ripens into a violation of the law ..., or to avoid multiplicity of actions by affording a remedy for declaring in expedient action the rights and obligations of all litigants." Id. at 496, 815 N.W.2d 132, quoting Rose v. State Farm Mut. Auto. Ins. Co. , 274 Mich. App. 291, 294, 732 N.W.2d 160 (2006) (emphasis omitted). Considering "that the bar for standing is lower when a case concerns election law," League of Women Voters , 506 Mich. at 587, 957 N.W.2d 731, plaintiff has shown a continuing actual controversy.
Alternatively, to the extent that an actual controversy no longer exists, a court may address a moot issue that "is one of public significance that is likely to recur, yet evade judicial review ...." P.T. Today, Inc. v. Comm'r of Office of Fin. and Ins. Servs. , 270 Mich. App. 110, 127, 715 N.W.2d 398 (2006) (quotation marks and citation omitted). It seems absurd to suggest that this issue of public importance may not be heard until plaintiff (or some other petitioner) (a) again goes to the enormous effort of signature gathering, (b) is denied ballot access on the basis of MCL 168.472a by the Board, and (c) seeks mandamus from the Supreme Court with the ballot deadline breathing down that Court's neck. Indeed, it would be hard to define a less efficient way for the courts to address this important question. And, of course, the Supreme Court could again deny mandamus without addressing the substantive issue, which—under the majority's approach—would bring us back to square one and further delay judicial review of MCL 168.472a. I cannot conclude that in amending MCL 168.479 the Legislature intended to forever bar a declaratory-judgment action as to the constitutionality of MCL 168.472a, and I cannot approve of the Catch-22 defined by the majority effectively precluding judicial review.
Even though plaintiff's access to the 2020 ballot is foreclosed, the constitutional question remains an issue for which a declaratory judgment is proper. Initiative petitions will almost certainly be filed for the 2022 and 2024 elections, and according to plaintiff, it will be among the groups seeking ballot access. Either an actual controversy exists or the substantive issue should nonetheless be reviewed because it is publicly significant and likely to evade judicial review. Accordingly, I would hold that the Court of Claims has jurisdiction to hear plaintiff's request for declaratory relief on the merits.
II. DOES MCL 168.472a VIOLATE THE RIGHT OF STATUTORY INITIATIVE ESTABLISHED BY ARTICLE 2 § 9 OF THE 1963 CONSTITUTION ?
Article 2, § 9 of the 1963 Constitution established the right to initiative reserved by the people:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative .... To invoke the initiative ..., petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
The language of the provision places no limit on the time to gather signatures. On the face of the provision, therefore, it is difficult to see the basis for the Legislature to place a 180-day limit on the time to gather signatures. Article 2, § 9 establishes rights in the people alone, without any language suggesting that the Legislature may limit those rights. There is an overriding rule of constitutional construction that requires that "specific power[s] the people themselves have expressly reserved ... be saved if possible as against conceivable if not likely evasion or parry by the legislature." Mich. Farm Bureau v. Hare , 379 Mich. 387, 393, 151 N.W.2d 797 (1967). "[C]onstitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed." Kuhn v. Dep't of Treasury , 384 Mich. 378, 385, 183 N.W.2d 796 (1971). See also Farm Bureau Mut. Ins. Co. of Mich. v. Comm'r of Ins. , 204 Mich. App. 361, 367, 514 N.W.2d 547 (1994).
The Board relies on Consumers Power Co. v. Attorney General , 426 Mich. 1, 392 N.W.2d 513 (1986), as its primary authority for the constitutionality of the 180-day limit. However, Consumers Power did not address the people's right to initiative or the text of Article 2, § 9. That case held that, as to a petition to amend the Constitution , the Legislature may impose a presumption of staleness to signatures gathered outside a 180-day period. Id. at 8. Consumers Power held that MCL 168.472a was constitutional as to a petition to amend the Constitution, which is governed by Article 12, § 2 of the Constitution, not Article 2, § 9, the provision at issue here. And unlike Article 2, § 9, Article 12, § 2 provides that "[a]ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law," a grant of authority to the Legislature not present in Article 2, § 9. Thus, Consumers Power actually undermines the Board's position because in Article 12, § 2, the drafters of the Constitution demonstrated that they understood what language would provide the Legislature with broad power over the petition process and they chose not to include that language in Article 2, § 9.
Even if one were to view Consumers Power as relevant, the nature of the Legislature's actions at issue in that case were far less burdensome on the right to petition than is the statute we consider in this case. The "presumption of staleness" limitation approved in Consumers Power did not place any legal limit on the time allowed for circulation. That presumption is rebuttable and allows the petitioner an opportunity to demonstrate that individuals who signed the petition outside the 180 days were still registered to vote in Michigan and so were entitled to have their signatures counted. Consumers Power explicitly relied on the distinction between an unrebuttable and rebuttable presumption and did not approve a hard-and-fast time limit: "The statute does not set a 180-day time limit for obtaining signatures. The statute itself establishes no such time limit. It states rather that if a signature is affixed to a petition more than 180 days before the petition is filed it is presumed to be stale and void. But that presumption can be rebutted." Consumers Power , 426 Mich. at 8, 392 N.W.2d 513 (emphasis added).
The presumption of staleness provides increased security in the petitioning process to ensure signature validity but does not require the Board to disqualify all signatures outside the 180 days. Thus, even if one were to somehow incorporate the text from Article 12, § 2 into Article 2 § 9, MCL 168.472a would remain infirm. Even when an amendment is at issue, the Legislature and the courts may not impose "undue burdens" on the people's right to amend. See Wolverine Golf Club v. Secretary of State , 384 Mich. 461, 466, 185 N.W.2d 392 (1971) (quotation marks and citation omitted).
Moreover, it is well settled that Article 2, § 9 is self-executing and does not require any legislation for it to be applied. This was discussed at length in Wolverine Golf Club v. Secretary of State , 24 Mich. App. 711, 725, 180 N.W.2d 820 (1970) : "Our only inquiry must be whether the statute is repugnant to the Constitution. It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision."
The Court further explained:
To hold that the right of initiative reserved to the people of the State of Michigan is not self-executing is to ignore the expressed intent of the framers. This conclusion is more compelling in light of the perceptive opinion of Justice Bird in Hamilton v. Secretary of State (1924), 227 Mich. 111, 130 :
The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that:
"A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will."
* * *
In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or executing of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified. State, ex rel. Caldwell, v. Hooker (1908), 22 Okla. 712, 718 (98 p. 964).
[Wolverine Golf Club , 24 Mich. App. at 728, 730, 180 N.W.2d 820.]
Some administrative requirements may be imposed to ensure that the petitions follow a certain form and that the Board has the time to canvass them prior to preparation of the ballot. However, "[t]here is ... an important distinction between statutes which protect the people from fraudulent attempts to bypass the legislature through initiative and those which create unnecessary obstacles to restrict the lawful use of initiative." Wolverine Golf Club , 24 Mich. App. at 733, 180 N.W.2d 820. To the degree that "legislation supplementary to self-executing constitutional provisions" may be effective, "such laws must not curtail the rights reserved, or exceed the limitations specified" in the Constitution. League of Women Voters of Mich. v. Secretary of State , 331 Mich. App. 156, 179, 952 N.W.2d 491 (2020) (quotation marks and citation omitted), rev'd in part on other grounds 506 Mich. 561, 957 N.W.2d 731 (2020). But that is exactly what MCL 168.472a does.
[W]hile the Constitution places the duty of implementation of initiative and referendum provisions on the Legislature, it does so as an incident to the granting of a right to the people. Although administrative implementation is needed if the initiative process is to function smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict the constitutional right. The spirit of the Constitution is not met if the rights it grants are unnecessarily impaired under the
guise of implementation. [ League of Women Voters, 331 Mich. App. at 179-180, 952 N.W.2d 491 (quotation marks and citation omitted; emphasis added).] [ ]
The Supreme Court recently held that the League of Women Voters’ challenge to newly adopted petition requirements was moot because the plaintiff had voluntarily abandoned its petition drive. League of Women Voters , 506 Mich. at 579-584, 957 N.W.2d 731. That is not the case here given the completed petition drive, the ensuing litigation, and plaintiff's declared intent to proceed in 2022.
The burden created by the 180-day circulation limit is unquestionably an "undue burden." It provides no more protection from the counting of invalid signatures than did the "presumption of staleness" that placed the burden on the circulators to show that signatures more than 180 days old are valid. Yet despite adding no additional election security, the absolute limit requires that valid signatures of registered voters be discarded. It is difficult to articulate any basis for the absolute limit other than a legislative desire to constrain the self-retained right of the people to initiate legislation. Indeed, the Board does not even attempt to argue that the 180-day requirement is necessary to ensure the security of the process or its administrative responsibility. And, as noted, Consumers Power specifically relied on the fact that the "presumption of staleness" was a rebuttable rather than an unrebuttable presumption.
The 180-day absolute limit for circulation of initiative petitions is violative of the state Constitution. It is a blatant attempt by the Legislature to interfere with the people's self-retained right to initiate legislation.
For these reasons, I respectfully dissent.