League of Women Voters of Mich. v. Sec'y of State

331 Mich.App. 156

952 N.W.2d 491

LEAGUE OF WOMEN VOTERS OF MICHIGAN, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin, Plaintiffs-Appellants,

v.SECRETARY OF STATE, Defendant-Appellee.

Senate and House of Representatives, Plaintiffs-Appellants,

v.Secretary of State, Defendant-Appellee.

No. 350938

No. 351073

Court of Appeals of Michigan.

Submitted December 3, 2019, at Lansing.

Decided January 27, 2020, 9:00 a.m.

Goodman Acker, PC, Southfield (by Mark Brewer ), Nickelhoff & Widick, PLLC (by Andrew Nickelhoff ), and Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz ) for the League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State.

Bursch Law PLLC, Caledonia (by John J. Bursch ) and Dickinson Wright PLLC (by Charles R. Spies and Ariana D. Pellegrino, Detroit) for the Michigan Senate and House of Representatives.

Before: Servitto, P.J., and Boonstra and Gadola, JJ.

Servitto, P.J.

In these consolidated appeals, plaintiffs in both cases appeal as of right a September 27, 2019 opinion and order of the Court of Claims which addressed two central issues: the constitutionality of certain provisions of 2018 PA 608 and whether or not the Senate and House of Representatives had standing to seek to uphold the constitutionality of a validly enacted statute. We affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

On December 28, 2018, 2018 PA 608 was signed into law. This public act amended the Michigan Election Law, MCL 168.1 et seq. , in several respects. First, the act amended MCL 168.471, which governs petitions that propose an amendment to the Michigan Constitution, initiative petitions, and referendum petitions. Prior to amendment, this statute generally set forth the number of signatures that had to be obtained on the petitions and set forth timing requirements for filing the petitions. One of the features of 2018 PA 608 was to add a geographic requirement that limits the total number of signatures to be used to determine the validity of a petition to no more than 15% from one congressional district.¹ Signatures in excess of the 15% per-district limit would not be counted. Additionally, when filing petitions as provided for in that statute, submitters would be required to sort the signed petitions by congressional district and include a good-faith estimate regarding the number of signatures from each district.

Second, the act amended MCL 168.477, which governs the sufficiency of a petition. 2018 PA 608 added a requirement that when the Board of State Canvassers is making an official declaration of the sufficiency or insufficiency of an initiative petition, it may not count toward the sufficiency of the petition any valid signature of a registered elector from a congressional district submitted on that petition that is above the 15% limit described in MCL 168.471.

Third, the act amended MCL 168.482.² This statute previously addressed only the format and content of acceptable petitions. The amendment requires sponsors of ballot petitions to gather signatures on forms designated by congressional district rather than by county, the designation previously used. The amendment further adds several parts which (1) require paid petition circulators,³ before gathering signatures, to file an affidavit with the Secretary of State (the Secretary) disclosing their nonvolunteer status;⁴ (2) mandate that new petition forms contain a checkbox for a circulator to indicate whether they are a paid circulator;⁵ and (3) require petition forms to contain a statement that, if a petition circulator fails to comply with the requirements, all signatures obtained by that circulator are invalid and will not be counted.⁶ In addition, circulators who provide false information relating to their status as a paid circulator would be subject to criminal prosecution for a misdemeanor.⁷

On January 22, 2019, the Secretary, who is the chief election officer of the state and has supervisory authority over local election officials,⁸ asked Michigan Attorney General Dana Nessel for a formal opinion regarding the constitutionality of 2018 PA 608 because it added new provisions regarding the invalidation of petition signatures that would have been considered lawful under the prior version of the law. By statute, the Attorney General gives opinions on questions of law posed by state officers. See MCL 14.32.

Relevant to the instant appeals, the Secretary inquired about the constitutionality of the act's 15% cap on the number of signatures allowable per congressional district, the requirement for submitters to sort petitions by congressional district, and the obligation for submitters to include a good-faith estimate of the number of signatures. The Secretary also asked whether the requirements for paid signature gatherers to file an affidavit before circulating petitions and a disclosure on the face of the petition that a circulator is paid were constitutional and whether she retained the authority to set forth the petition form for statewide ballot proposals in light of the mandate in 2018 PA 608 that sponsors use a congressional district form rather than a countywide form.

On May 22, 2019, the Michigan Attorney General issued Attorney General Opinion No. 7310. In the opinion, the Attorney General stated that the 15% geographic requirement based on congressional districts violates the petition and amendment provisions of the state Constitution, neither of which limit the number of signatures collected from one geographic region. She also opined that the requirement for circulators to indicate on petitions whether they were paid did not further any asserted governmental interest and exposed the circulators to the risk of "heat of the moment" harassment, such that it was unconstitutional. The Attorney General additionally stated that no state interest was apparent regarding why the Secretary would need to receive an affidavit from the circulator regarding their paid status, particularly where the petitions will contain circulators’ addresses, and thus concluded that the affidavit requirement was not substantially related to Michigan governmental interests and was unconstitutional. The Attorney General concluded that the following sections that were unconstitutional could be severed from the remainder of the act:

• the portions of MCL 168.471, MCL 168.477, and MCL 168.482(4) involving the 15% geographic requirement; • MCL 168.482(7) and MCL 168.482c, regarding the checkbox requirement; and

• MCL 168.482a(1) and (2), involving the precirculation affidavit.

On May 23, 2019, plaintiffs League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin (collectively, the League of Women Voters) filed a complaint in the Court of Claims against the Secretary for declaratory and injunctive relief. In their complaint, the League of Women Voters asserted that the 15% cap on petition signatures from any one congressional district is an unconstitutional effort to amend the Constitution by legislation, violates the constitutional rights of free speech and association, and violates the right to petition. They further asserted that invalidation of signatures for technical circulator errors or omissions violates the same constitutional rights with respect to petition proponents and signers and also violates due process. These plaintiffs thus sought a declaration that the challenged provisions of 2018 PA 608 are unconstitutional and additionally sought a permanent injunction barring defendant and her agents, officers, and employees from enforcing or giving any effect to the challenged provisions.

On June 5, 2019, the Michigan Senate and Michigan House of Representatives (the Legislature) also filed a complaint in the Court of Claims for declaratory and injunctive relief against the Secretary. These plaintiffs challenged the May 22, 2019 opinion of the Attorney General finding certain provisions of 2018 PA 608 unconstitutional, and they sought declarations that 2018 PA 608 is constitutional and a valid exercise of the Legislature's authority and that the law must be implemented and enforced by the Secretary.

The plaintiffs in both cases filed motions for summary disposition in July 2019. The League of Women Voters moved for summary disposition in its action against the Secretary pursuant to MCR 2.116(C)(10), asserting that there is no genuine issue of material fact that 2018 PA 608 is unconstitutional in several respects. The Legislature likewise moved for summary disposition pursuant to MCR 2.116(C)(10), contending that there is no genuine issue of material fact that 2018 PA 608 is presumptively constitutional and further withstands any challenges to its constitutionality.

The Court of Claims consolidated the cases. In a July 29, 2019 order, the Court of Claims also ordered that any parties in either of the two cases before it, for purposes of judicial economy and the avoidance of unnecessary costs and duplication of effort, "shall be permitted to file motions and papers, argue in hearings, and otherwise participate in either of the consolidated cases, subject to any further orders of the Court."

The League of Women Voters thereafter filed a second motion for summary disposition, this one against the Legislature pursuant to MCR 2.116(C)(6) and (10). The League of Women Voters asserted that the Legislature lacked standing to sue in the matter and that there was no genuine issue of material fact that 2018 PA 608 is unconstitutional.

After a hearing on all summary disposition motions, the Court of Claims issued a single opinion and order addressing all of the issues raised in both matters. At the outset, the Court of...