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MI Legalize Petition Signers Head to Federal Court, but Are Unlikely to Find Early Relief

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MI Legalize Petition Signers Head to Federal Court, but Are Unlikely to Find Early Relief

As we reported earlier this week, MI Legalize is stating that they will turn to the U.S. Supreme Court in appealing decisions of the Michigan courts rejecting their challenges to the State’s now-defunct policy for “rehabilitating” petition signatures older than 180 days. Based on that policy, the Board of State Canvassers rejected MI Legalize’s initiative petitions for having too few valid signatures, without reviewing the signatures themselves.

Yesterday, two signers of MI Legalize petitions filed suit in the U.S. District Court of the Eastern District of Michigan, and requested a temporary restraining order to immediately enjoin the State from printing ballots for this November’s election—even though printing of ballots for military and overseas voters must be completed within the next 15 days. MI Legalize also asked the Court to direct the State to canvass its petition signatures within three days, and place MI Legalize’s initiative on the 2016 ballot, with the requisite 100-word summary. 

Notwithstanding the possible merits of the challenges to the constitutionality of the Board of State Canvassers policy that led to the rejection of petition signatures gathered more than 180 days before filing, both of these federal court attempts seem likely to end in failure.  

The Request for a TRO

First, the federal court action filed yesterday—the day before the State has said ballots must go to the printer—could have been brought weeks ago, meaning the extraordinary time constraints for action are entirely of the Plaintiffs’ own making. In cases such as this, courts often apply the doctrine of laches, barring relief to litigants who have slept on their rights. 

Second, Plaintiffs’ contention that “immediate action is necessary” is contradicted by their own Complaint, which explicitly suggests that the initiative could be placed on the ballot not only in 2016, but at “whatever regular election is next scheduled,” specifically mentioning 2017 or 2018.  (Michigan, though, does not have a general election ballot in 2017.) 

Finally, the Plaintiffs note that the Michigan Legislature has a role to play in initiated laws, but then incorrectly claim that this role is “constrained to” implementing procedures for initiatives, “voting on the proposal in 40 session days adopting or rejecting” an initiative, and amending an enacted initiated law by a 3/4 vote. In their motion, Plaintiffs quote at length the Michigan Constitution’s section on initiated laws. But in both their Complaint and their motion, they omit any reference to or mention of a critical Constitutional power expressly granted to the Legislature—adopting an alternative measure to appear on the same ballot. Indeed, in quoting the Constitution in their motion, the only provisions pertaining to initiatives that Plaintiffs left out are two sentences that explain this power of the Legislature and what happens if two alternative measures are on the ballot. And as we reported in an earlier post, it is this right of the Legislature that makes it practically impossible for MI Legalize to make the 2016 ballot, at least without the court also effectively rewriting and nullifying a section of the Michigan Constitution. Given all of this, it is extraordinarily unlikely that Judge Parker will take the extreme measure of entering a TRO against the State; rather she will likely let the case develop in a more considered manner.

A Petition for Certiorari

As to the notion that the U.S. Supreme Court will hear this case, appellate lawyers understand that the Supreme Court is primarily interested in cases of critical importance where there is a split of authority among different federal circuits or where there is an important constitutional principle at stake that may affect the rights of more than just the parties seeking court review. Cases that purely concern the interests of two parties, without wider applicability, almost never are found worthy of review. 

While there are important First Amendment principles, and the rights of voters, at stake in the dispute between MI Legalize and the State’s policy, the MI Legalize case is not one that is likely applicable to any other party. Fundamentally, this case concerns a challenge to a unique state agency policy, one that is not replicated in other states. That policy has now been superseded by later legislation. It therefore applies and can apply to no other entity besides MI Legalize. And the same federal constitutional challenges MI Legalize brought in the state courts are now at issue in the case brought by petition signers  in Judge Parker’s court, meaning the U.S. Supreme Court can let the issues be further developed in the lower federal courts.

Conclusion

The best chance for MI Legalize, short of a better effort at gathering signatures on a new petition within a 180-day window, would appear to be petition signers winning the challenge against the State Canvassers’ policy in the case before Judge Parker, on a more deliberate timeline. In doing so, they must hope that their last-second approach and omission of the Legislature’s full role from their first filings does not cost them credibility with the court. If the petition signers do win their case, then the Board of Canvassers will have to process their signatures, and if there are in fact sufficient valid signatures, then the initiative could be placed on the 2018 ballot. 

For more information on MI Legalize’s continuing legal efforts, as well as for additional updates on cannabis-related developments, check back to Dykema’s Cannabis Law Blog.