EASTERN DISTRICT OF MICHIGAN DAKOTA BLUE SERNA …media.mlive.com/news_impact/other/Marijuana...

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UNITEDSTATESDISTRICTCOURTEASTERNDISTRICTOFMICHIGAN

SEANMICHAELMYERS,and CASENO._____________________DAKOTABLUESERNA Plaintiffs HON.________________________v.RUTHJOHNSONMICHIGAN COMPLAINTSECRETARYOFSTATE,CHRISTOPHERTHOMAS,DIRECTOROFBUREAUOFELECTIONS,andBOARDOFSTATECANVASSERS,(suedintheirofficialcapacities) Defendants.

Thomas Lavigne (P58395) Michael Komorn (P47970) Cannabis Counsel PLC Law Firm Law Offices of Michael Komorn Attorneys for Plaintiffs Attorneys for Plaintiffs 2930 Jefferson Avenue East 30903 Northwestern Highway, Ste. 240 Detroit, MI 48207 Farmington Hills, MI 48334 (313) 446-2235 (800) 656-3557 [email protected] [email protected] _______________________________________________________________________

NOTICE: THIS COMPLAINT INVOLVES A CLAIM THAT A PROVISION OF THE CONSTITUTION, A STATUTE, RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS INVALID.

NOTICE: There is no related case in this court concerning some of the same or similar constitutional claims.

COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

INTRODUCTION NOW COMES PLAINTIFFS, SEAN MICHAEL MYERS AND DAKOTA BLUE

SERNA, by and through their attorneys Thomas Lavigne, and Michael Komorn and

complains and moves for a temporary restraining order, preliminary and permanent

injunction against defendants, and other relief. This action seeks one outcome-- to order

defendants to not print any ballots until they canvass and count the petition signatures,

2:16-cv-13255-LVP-EAS Doc # 1 Filed 09/08/16 Pg 1 of 20 Pg ID 1

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including Plaintiffs’, and if enough, to place the MILegalize proposal on the ballot of the

next general election due to a declaratory finding that:

a. The “rebuttable presumption” burden for any signature on an initiatory petition older than 180 days under MCL 168.472a is unconstitutional;

b. The 1986 Board of Canvassers policy to utilize the rebuttable presumption, which all parties acknowledge has never been utilized and is impossible for Plaintiff to comply with, is unconstitutional;

JURISDICTION & VENUE

1. Jurisdiction and venue are proper in this federal court as the conduct complained

of occurred in the State of Michigan and this Complaint asserts U.S. Constitutional

claims providing for declaratory, injunctive and extraordinary relief allowed in this

federal district court.

2. This action challenges the constitutionality under the US Constitution of the

rebuttable presumption itself, the 1986 BOC Policy, and any time-limitation in Michigan

statute MCL 168.472a for collecting signatures, as applied to petitions to initiate

legislation.

THE CHALLENGED STATUTE

3. The rebuttable presumption, which is the statute relied upon by Defendants in

ignoring their duty to count Plaintiff’s signature, was enacted in 1973:

It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if the signature was made more than 180 days before the petition was filed with the office of the secretary of state.


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THE STATUTORY INITIATIVE SIGNED AND CIRCULATED: MILEGALIZE

4. The petition plaintiffs circulated and signed is the one initiated by Michigan

Comprehensive Cannabis Law Reform Committee a/k/a (“MILegalize”), a ballot

question committee organized under Michigan law, and headquartered in Lansing,

Michigan. The MILegalize initiative would enact the Michigan Marijuana Legalization,

Regulation, and Economic Stimulus Act, which has three basic pillars of policy and

would broadly legalize cannabis for adults over the age of 21; create new legislation to

supplement and improve on the Michigan Medical Marihuana Act to provide safe access

to and regulation for medical marihuana; and allow for the farming of industrial hemp.

Additional provisions provide state and local authority to regulate cannabis commerce

and use a 40/40/20 tax proceeds division 40% to the School Aid Fund, 40% to the

Department of Transportation, and 20 % back to local governments that license and

regulate cannabis related businesses in their own communities. The initiative is estimated

to save various levels of government hundreds of millions of dollars in costs annually and

raise hundreds of millions in dollars in new tax revenue; create 25,000 to 50,000 cannabis

industry related new jobs; and eliminate the arrests of approximately 20,000 adults for

simple cannabis use and possession every year in Michigan.

5. The 1986 BOC rebuttable presumption policy purports to require the proponent of

an initiative to rebut the presumption posed by MCL 168.472a by either:

a. Proving that the person who executed the signature was properly

registered to vote at the time the signature was executed and;

b. Proving with an affidavit or certificate of the signer that the signer was

registered to vote in Michigan within the ‘180 day window period’ and


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further, that the presumption posed under MCL 168.472a could not be

rebutted through the use of a random sampling process.

6. At stake in this case are not only the interests of Plaintiffs, but also the

longstanding constitutional rights of approximately 7 million Michigan qualified electors

and the MILegalize ballot campaign, to enact legislation through the citizen initiative

process.

7. On June 1, 2016, MILegalize filed approximately 354,000 signatures on

petitions, including Plaintiff’s, to initiate legislation pursuant to Art 2, Sec 9 to qualify for

the statewide ballot. Any campaign seeking to place an initiative on the ballot had to

submit at least 252,523 signatures to qualify. MILegalize submitted petitions with

potentially more than 100,000 extra signatures than the minimum requisite threshold.

8. On June 6, 2016, the BOE issued a staff recommendation, to deny ballot access to

the MILegalize petition signed by Plaintiff petitions, to the BOC allegedly because

MILegalize failed to submit enough signatures for ballot qualification due to more than

200,000 of those signatures, including Plaintiff’s, being collected more than 180 days

prior to submission, and the basis for not accepting those signatures was the 1986 BOC

policy, and on June 9, 2016, the BOC accepted the BOE staff recommendation at a BOC

meeting.

9. MILegalize was able to rebut 137,000-plus signatures at the time of filing.

10. An actual controversy and actual imminent harm exists because the BOE and

BOC have taken adverse action against Plaintiffs as a signers and circulators of said

petition, and Plaintiffs must act to preserve their rights.


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PARTIES

11. Plaintiff, Sean Michael Myers is a United States Citizen and registered to vote in

the State of Michigan, who signed the MILegalize petition more than 180-days before

filing with the Defendants.

12. Plaintiff, Dakota Blue Serna is a United States Citizen and registered to vote in

the State of Michigan, who signed the MILegalize petition more than 180-days before

filing with the Defendants.

13. Defendants are sued in their official capacities, acting under color of state law, as

state officials and agencies who implement and administer the initiative statutes and

regulations. The governor appoints the Board of State Canvassers (BOC). The Secretary

of State (SOS) appoints and supervises the director of the Bureau of Elections (BOE), a

state agency of the State of Michigan. The BOC consists of 4 members, appointed to the

board by the Governor, assisted by the BOE, and by law containing two members of each

the Republican and Democratic political parties.

GENERAL ALLEGATIONS & FACTS ABOUT THE MILEGALIZE CAMPAIGN AND ACTIONS UNDER COLOR OF LAW OF DEFENDANTS IN THEIR

OFFICIAL CAPACITIES

14. Plaintiff moves, under Fed. R. of Civ. Pro. 65, that a temporary restraining order

be issued to restrain the printing of ballots for the November 2016 election, and that this

case be expedited so that the voters may have the opportunity they deserve to voice their

opinion on the ballot question if Defendants count enough signatures.

15. There is still time for canvassing and the ballots to be printed with the ballot

question included. Courts can rule expeditiously on elections cases, including ordering


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reprint of ballots. Detroiters for City Council by Districts v Janice Winfrey (Michigan

Court of Appeals, Sept. 22, 2009) ordered a Home Rule City act amendment be placed on

the ballot—the mandamus action in that case was filed that year on September 16th, 2009.

Similarly the BOE and BOC were seriously prejudiced in 1986 with the Consumers

Power case, which was filed and the debate at the time was in August of 1986, only a

couple months before the election. The ability to litigate these disputes in a much more

timely and thoughtful manner exists if the Court acts expeditiously and orders the BOE to

begin canvassing the entire set of petitions submitted for whether the signors were

qualified electors.

16. Immediate action is necessary so that Plaintiff’s signature is counted, along with

the other petition signatures, in part gathered by plaintiffs, and the voters are not deprived

of their right to vote on the subject ballot question at the November 8, 2016 regular

election, or whatever regular election is next scheduled after these disputes reach final

resolution. Additionally, ballots begin to be proofed and printed in September and this

issue must be resolved expeditiously in case appeals or further litigation occur.

17. The Michigan Comprehensive Cannabis Law Reform Committee is a registered

Michigan ballot question committee a/k/a MILegalize. The committee is currently

comprised of a volunteer board of directors of fifteen registered voters from across the

state.

18. MILegalize formed as a ballot committee in April, 2015, and had its petitions

approved as to form by the BOC on June 11, 2015.

19. MILegalize began circulating petitions on June 25, 2015, on the steps of the

Michigan Capitol as an all volunteer effort, with less than $10,000.00 in campaign


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contributions, and from that point forward over a course of 11 months raised and spent

more than $1.1 million towards achieving ballot access as of June 1, 2016.

20. On June 1, 2016, MILegalize submitted at least 354,000 signatures, including

Plaintiff’s, to the Bureau of Elections to qualify for the next general election ballot.

21. MILegalize is the first grassroots cannabis legalization campaign in the United

States to ostensibly qualify for statewide ballot access without national lobbying groups

providing resources or large out-of-state funders. If Plaintiff prevails, Michigan will join

California, Maine, Massachusetts, Arizona, Nevada, and maybe several other states in

voting for cannabis legalization in 2016. If Plaintiff’s case is delayed due to litigation, it

will likely join other states in 2017 or 2018 when MILegalize would be on the next

regular election ballot, joining Colorado, Washington, Oregon, Alaska, and Washington

D.C. as legal cannabis states.

22. In 2016, MILegalize was the only approved ballot committee out of 12 potential

registered petitions statewide which met the statutory burden to file enough signatures to

qualify for the ballot. The other groups, with the exception of the CBFM campaign, all

either quit due to lack of signatures or financial resources to accomplish ballot

qualification.

23. Over a course of 11 months, MILegalize collected over 375,000 signatures,

including Plaintiff’s, for a statutory initiative, with approximately 1,000 people

circulating petitions.

24. MILegalize spent the majority of the funds it raised paying petitioners to collect

signatures.


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25. Upon information and belief, experts estimate that in most instances, especially

within a 180-day time limit, it requires at least $2-3 million for a campaign to

successfully reach the ballot.

26. MILegalize hired Practical Political Consulting (PPC) to pre-screen its own

petitions to the extent possible. PPC prepared initial proofs for Plaintiff to rebut any

older signatures if necessary, and such proofs were provided to the BOE at the time of

filing.

27. When MILegalize filed its petitions, it included information that could be used for

the rebuttal process despite no statutory guidance on what is required to do so.

MILegalize submitted this information upfront in good faith in an attempt to rebut the

majority of its signatures that may need to go through a rebuttal process and in order to

speed up the qualification process.

28. While Michigan law apparently does not provide for the supplemental filing of

additional petitions after June 1, there is no prohibition on rebutting the presumption of

any challenged or refused signature with supplementary documentation after the fact if

necessary, and MILegalize is able to reasonably assist in clarifying or rebutting the

alleged staleness of any signatures if given a proper due process opportunity to do so

after canvassing.

29. There were a number of additional pages filed that would require the opportunity

to rebut if MCL 168.472a is enforced, and MILegalize intended on supplementing

information on those pages as soon as possible during any due process opportunity to

rebut, or, if the BOE or SOS, which have authority to compel clerks to take actions, assist

in the rebuttal process (which makes no sense, it is a waste of time because the BOE can


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just sample the signatures like it already is legally required to do using the QVF).

30. Of the lines on the pages documented at the time of filing, according to the

affidavit of Alan Fox of PPC:

- 137,029 lines contain information from QVF and no comment in the EXPLANATION column. These are our rebuttals - 54,669 lines are noted as 'NO REBUTTAL.' These are signed lines for which we have no rebuttal of the presumption of staleness at this time. - 91,570 lines are noted as blank or crossed out or are conceded as invalid for reasons other than the date of signature - 1,794 lines were signed on or after December 5, 2015 and are noted as not requiring rebuttal. Any other line that on its face has a signing date of December 5, 2015 or later but is not noted as such in the file should be similarly treated even if the notation in the file indicates otherwise.

31. The electronic file submitted along with the petitions is a comma-delimited text

file containing 285,061 lines, including a header line with column names.

32. Despite these efforts and this submission, the campaign provided notice to the

BOE that it does not waive any rights or privileges, and reserves all rights, due process

and opportunities to hereafter rebut any presumption of staleness raised by the BOE, the

BOC, or any other person or entity, with fair and adequate notice and opportunity to be

heard.

33. On June 7, 2016, the Bureau of Elections, acting under color of law, publicly

issued a staff report saying that because some of MILegalize’s petition signatures,

including Plaintiff’s, were collected beyond a 180-day window, those signatures,

including Plaintiffs, would not be counted towards ballot qualification, and therefore, that

the BOE would recommend to the BOC that the campaign had submitted an insufficient

number of signatures for ballot qualification.

34. On June 7, 2016, Governor Snyder signed SB776 into law with immediate effect.


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35. On June 9, 2016, the BOC accepted the staff recommendation to not count all of

MILegalize’s submitted signatures.

36. On June 14, 2016, five business days later, MILegalize timely filed suit, stalled in

the Court of Claims for two months with no action, then summarily dismissed with no

opinion by both the Michigan Court of Appeals and Supreme Court, now on appeal to the

US Supreme Court.

37. If the rule of article 2 section 9, Wolverine Golf Club, Woodland v Michigan

Citizens Lobby, and Bingo Coalition for Charity--Not Politics v Board of State

Canvassers and the First, Fifth, and Fourteenth Amendments to the US Constitution are

not upheld, Plaintiffs will suffer irreparable harm.

38. Defendants published and distributed a regular (annual or longer) official

statement regarding rebuttable presumptions, implying that a campaign can petition

beyond 180 days, but leaving vague, even over the years, what the standard was or how it

could be achieved. The same language appears to have been used in the few examples of

publications from the SOS from various years including 2008 and 2015, in relevant part:

Circulation Period Michigan election law, MCL 168.472a, states, “It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if it was made more than 180 days before the petition was filed with the office of the secretary of state.” Given this provision, signatures more than 180 days old on the date an initiative petition is filed are not counted unless shown to be valid by the proponents of the initiative. Information on the procedure for rebutting the presumption of signature invalidity provided under MCL 168.472a is available from the Michigan Department of State’s Bureau of Elections. (emphasis added).

39. Plaintiff’s US Constitutional free speech, association, equal protection and due

process rights dictate that election deadlines, rules, laws and good order should not be


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such a mystery nor subject to such disruption by defendants or the Michigan Legislature

in this instance, due to constitutional deference to Art 2, Sec 9.

40. Plaintiffs have standing because “petition signers [and circulators] possess a

legally protected interest in having their signatures validated, invalidated, empowered, or

disregarded according to established law....”, and because both the BOE and BOC have

failed to canvass the MILegalze petition that Plaintiffs signed and circulated.

41. The legislature already has a constitutional role in the indirect statutory initiative

process, constrained to the following: implementing procedures which do not curtail the

people's right to initiative, voting on the proposal in 40 session days adopting or rejecting

it; and after a measure passes it can amend the law by a 3⁄4 vote in house and senate.

42. By “curtailing” the signature collection period the 180- day statute “restrict the

utilization of the initiative petition and lack any current reason for so doing,” and most

certainly do not comport with a strict scrutiny analysis applicable in this complaint

asserting Plaintiff’s US Constitutional free speech, association and due process rights

under the First and Fourteenth Amendments.

43. There is no reason to think that citizen “suspicion” of the legislature,

“antagonism” to it, and desire to “control” its power and “curb” its authority have

diminished in recent years. Deeleuw v State Board of Canvassers, 263 Mich App 497,

505 (2004).

COUNT I- INJUNCTIVE RELIEF PURSUANT TO 42 USC SECTION 1983

44. Plaintiff restates each prior allegation as if restated herein.

45. Plaintiff brings this civil rights action under 42 USC 1983 et seq. US Constitution

First, Fifth and Fourteenth Amendments, and Michigan Constitution Article I, Sections 1,


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3, 5, 17, and Article II, Sections 1 and 4, for violation of Plaintiffs’ freedom of speech, of

association, due process and equal protection rights, applied to the states through the

Fourteenth Amendment.

46. Plaintiff will suffer irreparable harm absent injunctive relief ordering Defendants

to abstain from printing the ballots and to canvass and count Plaintiff’s signature and the

other signatures on the MILegalize petition filed with Defendants June 1, 2016.

47. Defendant BOE had a clear legal duty to timely canvass and qualify the initiative,

which would trigger timelines for creating the ballot summary language, and failed to do

so. Plaintiff could not sue for injunctive relief until the petitions had been rejected.

Plaintiffs acted timely, filing suit immediately after the Michigan Supreme Court

summarily dismissed the suit filed by MILegalize.

48. This court should issue a temporary restraining order and preliminary and

permanent injunction compelling defendants to restrain from printing ballots and to count

the Plaintiffs’ signature along with all of the other petition signatures and for the BOE to

proceed with canvassing and qualifying the initiative on the next regular election ballot, if

enough are filed.

49. Michigan's Supreme Court has recognized that one of the "primary missions" of

the Attorney General is to give legal advice to the Legislature, and to departments and

agencies of state government. East Grand Rapids School Dist v Kent County Tax

Allocation Bd, 415 Mich 381, 394; 330 NW2d 7 (1982).

50. Defendants, state agencies, were on clear legal notice under AG 4813 and AG

5528, that the State of Michigan’s official position was that the rebuttable presumption is

unconstitutional, at least as applied to statutory initiatives.


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51. It is well-settled Michigan law that state agencies must follow the orders of the

attorney general opinions unless a court or other higher authority directs them otherwise.

See Michigan ex rel. Oakland Co. Prosecutor v. Dep't of Corrections, 199 Mich.App.

681, 691, 503 N.W.2d 465 (1993) (an opinion of the Attorney General is binding on state

agencies and officers).

52. After MILegalize filed 354,000 potentially valid signatures with the Bureau, over

100,000 more than legally required to, and MILegalize having complied with all laws,

approvals, rules, policies and procedures to circulate and file initiative petitions

otherwise, Plainitiff had a legal right to have its signature and the other petitions

canvassed by the BOE, and Defendants had a clear legal duty to canvass the petitions.

53. The acts required of Defendants to canvass and fairly process Plaintiff’s signature

and the other petitions for ballot qualification are ministerial, and no other remedy

besides an injunction exists to achieve the same result.

54. The enforcement of both the 1986 policy and the rebuttable presumption of MCL

168.472a violate Plaintiff’s US Constitutional free speech, association, equal protection

and due process rights, if Plaintiff’s signature and the other submitted signatures are not

fully canvassed.

THE 1986 BOC POLICY VIOLATES THE FIRST, FIFTH AND FOURTEENTH AMENDMENTS OF US CONSTITUTION and MICHIGAN CONSTITUTION AND FAILS STRICT SCRUTINY REVIEW BY PLACING UNDUE BURDENS

ON A FUNDAMENTAL RIGHT

55. It is logistically and financially not just overly burdensome, but impossible, to

secure affidavits from petition signors more than 180 days old, and to secure affidavits

from local clerks.


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56. Local clerks have no legal duty to assist in the rebuttal process, and BOE Director

Thomas stated several times that clerks do not have a legal duty to comply with a

petitioner’s request to assist in rebutting signatures.

57. Upon information and belief at least one other ballot question committee, the

Michigan Cannabis Coalition, also attempted to rebut signatures with county clerks, and

out of 83 possible clerks, only the Macom and Antrim county clerks attempted to comply.

Regardless, county clerks were not the clerks mandated by the 1986 policy to provide

rebuttal certification.

58. Obviously, if clerks refuse to assist or comply with the rebuttal of signatures,

there is no way for a person to actually exercise the right.

59. Upon information and belief, several clerks refused to assist both MILegalize and

the Michigan Cannabis Coalition, and correspondence from the BOE to clerks that

contacted the Bureau in writing the BOE instructed clerks that there was no legal

authority for them to rebut.

60. Upon information and belief, none of the 1500-plus elected or appointed local or

county clerks in Michigan have ever received any training or guidance from the BOE on

the rebuttable presumption policy.

61. The 1986 BOC policy also seems to run afoul of the 1978 Headlee amendment,

purporting to require an unfunded mandate to local clerks to perform a duty state

defendants are required to perform (canvassing a statewide petition), while not providing

appropriations to do so, in violation of Art 9, Sec 29.

62. The state’s compelling interest in this instance is in requiring that only qualified

electors sign petitions to place matters on statewide ballots and preventing election fraud.


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To the extent there is an additional interest in the purity of elections, the use of signor

affidavits does nothing to satisfy that interest. A signor could attest to being registered,

but not actually be. Clerk certification could satisfy qualified elector status with more

reliability, but only on a case-by-case basis and only locally, with nowhere near the most

superior quantum of proof, the SOS’s Qualified Voter File, which the BOE maintains

with far superior capabilities for canvassing the petitions.

63. Requiring either signor or clerk affidavits or certifications is not narrowly tailored

to achieve any compelling state interest, nor is it the least burdensome means to

accomplish any interest. In fact it is about as burdensome as it can get—it extinguishes

any exercise of the right altogether.


168.472a harm Plaintiff’s US Constitutional First Amendment free speech and

association and Fourteenth Amendment due process and equal protection rights if

Plaintiffs’ submitted signatures and the other petition signatures, collected in part by

Plaintiffs, are not fully canvassed.

BOTH THE TERMS “REBUTTABLE PRESUMPTION” AND “STALE” OF MCL 168.472a VIOLATE THE US AND MICHIGAN CONSTITUTIONS, THE FIRST,

FIFTH AND FOURTEENTH AMENDMENTS AND ARE VOID FOR VAGUENESS

65. Under well-established rules of statutory construction, every statute is to be

enforced according to its plain meaning. Roberts v Mecosta County Gen Hosp, 466 Mich

57, 63; 642 NW2d 663 (2002). And “[e]ach word of a statute is presumed to be used for

a purpose.” Levy v Martin, 463 Mich 478, 493-494; 620 NW2d 292 (2001), quoting

Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). Effect must be given to


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“every word, phrase, and clause in a statute” so as to “avoid an interpretation that would

render any part of the statute surplusage or nugatory.” State Farm Fire and Cas Co v Old

Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).

66. The term “rebuttable presumption” is not defined in Michigan election law.

67. As noted above, the uses of “rebuttable presumption” in Michigan election law all

include the mandatory canvas of the QVF to determine qualified elector status, and the

ability to rebut a determination that a person is not a qualified elector as indicated by the

QVF, after-the-fact. The same should be true for the unique use of the term “rebuttable

presumption” in MCL 168.472a.

68. The term “stale” is not defined in Michigan election law.

69. Two of the state’s top recognized elections lawyers, Mr. John Pirich and Mr. Gary

Gordon, were stumped and could not provide any coherent definition during joint

testimony at BOC meetings on when asked what stale meant, and in their written

submissions.

70. The BOE also could not define the term stale. No other testimony was offered by

any party as to the definition of stale in MCL 168.472a.

71. The other argument raised in 1986 for the definition of stale was that it was meant

to preclude signatures collected prior to the last gubernatorial election which bounds the

petition campaign.





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Plaintiff’s submitted signature and the other petition signatures are not fully canvassed,

without regard to the 180-day rule.

BOTH THE 1986 BOC POLICY AND THE REBUTTABLE PRESUMPTION OF MCL 168.472a VIOLATE 1963 MICHIGAN CONSTITUTION ART 2, SEC 9 AND

THEREBY VIOLATES PLAINTIFF’S FIRST, FIFTH AND FOURTEENTH AMENDMENT RIGHTS

73. The Legislature is prohibited by the self-executing language of Art 2, Sec 9, from

enforcing the rebuttable presumption of MCL 168.472a, as Art 2, Sec 9 is self-executing,

as opposed to Art 2, Sec 12, constitutional amendments, which section does not have

self-executing language.

74. The Supreme Court already ruled that MCL 168.472 is unconstitutional “The

requirements of this section constitute an unnecessary and unreasonable restraint on the

constitutional right to initiate legislation, as provided for by Const 1963, art 2, § 9.”

Wolverine Golf Club v Secretary of State, 384 Mich 461; 185 NW2d 392 (1971).

75. Wolverine declared Sec 472 unconstitutional, and the same grounds and reasoning

apply in this case to Sec 472a:

Sec. 472. Petitions to initiate legislation shall be filed with the secretary of state not less than 10 days before the beginning of a session of the legislature. History: 1954, Act 116, Eff. June 1, 1955. Constitutionality: The requirements of this section constitute an unnecessary and unreasonable restraint on the constitutional right to initiate legislation, as provided for by Const 1963, art 2, § 9. Wolverine Golf Club v Secretary of State, 384 Mich 461; 185 NW2d 392 (1971).

76. Considering the language of Art 2, Sec 9; the Wolverine ruling; the AG opinions;

and historical facts, MCL 168.472a violates Art 2 Sec 9 on its face and as applied.


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Plaintiff’s submitted signature and the other petition signatures are not fully canvassed.

DUE PROCESS VIOLATIONS, ARBITRARY AND CAPRICIOUS ACTIONS VIOLATE 5TH AND 14TH AMENDMENTS

78. The enforcement of both the 1986 BOC policy and the rebuttable presumption of

MCL 168.472a are both arbitrary and capricious. A ruling of an administrative agency “is

arbitrary and capricious when it lacks an adequate determining principle, when it reflects

an absence of consideration or adjustment with reference to principles, circumstances, or

significance, or when it is freakish or whimsical.” Wescott v Civil Serv Comm, 298 Mich

App 158, 162; 825 NW2d 674 (2012). In this instance, when defendants did not even

enforce the statute in question for 13 years because it was the state’s position it was

unconstitutional, then defendants attempted to enforce a 1986 policy which the BOC had

no authority to enact, then it used that same 1986 policy which everyone acknowledges is

unworkable, all while having a computer database, the QVF, which can prove the

registration of every Michigan qualified elector, certainly lacks principle and

consideration, fails to adjust when clearly needed to real world facts, and is so whimsical

when the state is also required under current law to canvass petitions using the QVF!

79. The failure to canvass Plaintiff’s signature and the other petitions, when

MILegalize has offered good faith proof of qualified elector status to rebut any

presumption of staleness under MCL 168.472a, and MILegalize not being offered a fair

opportunity to dispute any presumption after a fair canvass of Plaintiff’s signature and the


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other petitions has occurred, violates Plaintiffs’ due process and equal protection rights,

and the due process and equal protection rights of 200,000-plus other signors like

Plaintiff whose signatures are more than 180 days old.

80. Therefore, Plaintiff brings this civil rights action under 42 USC 1983 et seq., US

Constitution First and Fourteenth Amendments, and Michigan Constitution Article I,

Sections 1, 3, 5, 17, and Article II, Sections 1 and 4 and demands the following relief.

CONCLUSION & RELIEF REQUESTED

WHEREFORE, Plaintiff seeks remedy and redress from the Court to issue a temporary

restraining order followed by a preliminary and permanent injunction for the reasons set

forth above and in Plaintiff’s brief in support, and that a temporary restraining order be

issued immediately, ex parte, and for other relief:

• Expedite this matter on the Court's docket;

• Declare the 1986 rebuttable presumption policy of the Board of Canvassers as

unconstitutional under the free speech and association protections of the US

Constitution First Amendment and due process and equal protection of the

Fourteenth and Fifth Amendments, given the mandate under the Michigan

Constitution article 2 section 9, and unenforceable as applied to statutory

initiatives;

• Issue a Temporary Restraining Order and enjoin Defendants from enforcement of the

rebuttable presumption of MCL 168.472a; the 1986 Board of Canvassers

rebuttable presumption policy; and from enforcing SB776, or any other statute or

administrative rule which restricts the length of the signature collection period for


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statutory initiatives;

• Issue a Temporary Restraining Order ordering the Bureau of Elections and Board of

Canvassers to stop the printing of ballots until they proceed with any canvassing

and qualifications of the petitions in a normal, orderly, timely, and

constitutionally compliant fashion, expedited to be done within 3-days, toward

getting it on the November 2016 ballot;

• Declare all other legislative or administrative restrictions of the length of the signature

collection period unconstitutional under article 2 section 9, and unenforceable as

applied to statutory initiatives;

• Declare SB776 unconstitutional under article 2 section 9, and unenforceable as applied

to statutory initiatives;

• Declare SB776 unconstitutional as a violation of the First Amendment;

• Declare SB776 unconstitutional as a violation of the 14th Amendment.

• Enjoin defendants from applying SB776, or any other statute or administrative rule

which restricts the length of the signature collection period for statutory

initiatives;

• Award Plaintiff’s counsel reasonable attorney fees; and

• Grant such other relief as the court finds just or equitable under the circumstances.

Respectfully Submitted:

Dated: September 8, 2016. By: s/Thomas Lavigne Thomas Lavigne (P58395) Cannabis Counsel, PLC Michael Komorn (P47970) Attorneys for Plaintiff


2:16-cv-13255-LVP-EAS Doc # 1-1 Filed 09/08/16 Pg 1 of 2 Pg ID 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SEAN MICHAEL MYERS, and CASE NO. ___________________ DAKOTA BLUE SERNA Plaintiffs HON. ________________________ v. RUTH JOHNSON MICHIGAN PLAINTIFFS’ MOTION FOR TRO SECRETARY OF STATE, CHRISTOPHER THOMAS DIRECTOR OF BUREAU OF ELECTIONS, and BOARD OF STATE CANVASSERS, (sued in their official capacities) Defendants.


PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Sean Michael Myers and Dakota Blue Serna hereby moves for a temporary injunction,

pursuant to FRCP 65(b) against Defendants RUTH JOHNSON MICHIGAN, SECRETARY OF

STATE, CHRISTOPHER THOMAS DIRECTOR OF BUREAU OF ELECTIONS, and BOARD

OF STATE CANVASSERS, to stop any printing of ballots and to count the signatures, and if

enough, then to put on the ballot, the people’s initiative petition filed by Ballot Question

Committee, MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE

a/k/a MILEGALIZE, which Plaintiffs circulated and signed along with over 350,000 elector

citizens, more than enough to qualify for the ballot, except that Plaintiffs circulated and signed

the petition over 180-days before filing of the petition, and had Plaintiffs recirculated to the same


signers or re-signed was/is a violation of elections law and both signatures are disqualified by

Defendants as a policy.

September 8, 2016. S/Thomas Lavigne________ Thomas Lavigne (P58395) Law Firm of Cannabis Counsel PLC 2930 Jefferson Avenue East Detroit, MI 48207 (313) 446-2235 Michael Komorn (P47970) Attorneys for Plaintiffs


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SEAN MICHAEL MYERS, and CASE NO. ________________ DAKOTA BLUE SERNA Plaintiffs HON. ________________________ v. RUTH JOHNSON MICHIGAN BRIEF IN SUPPORT OF SECRETARY OF STATE, EX PARTE MOTION FOR TRO CHRISTOPHER THOMAS DIRECTOR OF BUREAU OF ELECTIONS, and BOARD OF STATE CANVASSERS, (sued in their official capacities) Defendants.


BRIEF IN SUPPORT OF PLAINTIFF’S EX PARTE MOTION FOR

TEMPORARY RESTRAINING ORDER

Sean Michael Myers and Dakota Blue Serna hereby move for a temporary injunction,

pursuant to FRCP 65(b) against Defendants RUTH JOHNSON, MICHIGAN SECRETARY OF

STATE, CHRISTOPHER THOMAS DIRECTOR OF BUREAU OF ELECTIONS, and the

BOARD OF STATE CANVASSERS.

The relief requested is to order Defendants to stop any printing of ballots, which may

otherwise begin printing the end of this week, and to count the signatures, and if enough, to put

on the November 2016 electoral ballot, the people’s initiative petition filed by Ballot Question


Committee, MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE

a/k/a MILEGALIZE.

Plaintiffs circulated and signed said petition along with over 350,000 elector citizens,

more than enough to qualify for the ballot, except that Plaintiff signed over 180-days before

filing of the petition, and to have re-signed is against election law and both signatures are

disqualified by Defendants, by policy if someone signs twice.

While federal law does not provide for ballot question petitions, if a state constitution like

Michigan’s provides the power of the people’s initiative, then it must be provided to the people

with due process of the law, both procedural and substantive, equal protection and upholding the

core free speech expressed by Plaintiff by signing this petition, a registered voter in Michigan.

Brock v Thompson, 948 P2d 279, 287 fn 25; 1997 OK 127 (Okla 1997). In this case, Defendants

have violated Plaintiff’s federal 5th and 14th Amendment due process and equal protection rights

and Plaintiffs’ 1st Amendment rights of freedoms of speech and association. U.S. Constitution

First, Fifth and Fourteenth Amendments.

Rule 65(b) of the Federal Rules of Civil Procedure provides for a temporary restraining

order (“TRO”) without notice. The factors in granting a TRO were discussed in, Northeast Ohio

Coalition for Homeless v. Blackwell, 467 F. 3d 999 - Court of Appeals, 6th Circuit 2006:

(1) whether the movant has a strong likelihood of success on the merits,

(2) whether the movant would suffer irreparable injury absent an injunction,

(3) whether granting the injunction would cause substantial harm to others, &

(4) whether the public interest would be served by granting the injunction.

To determine whether a TRO should be stayed, the court considers the same factors considered in determining whether to issue a TRO or preliminary injunction. See Summit County, 388 F.3d at 550. Those factors are (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable


injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Id.; Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay. See id.

The attached Affidavits of Plaintiffs attest to specific facts about these TRO factors

argued below; and the attached certificate of attorney states that the state attorney general office

was noticed as they were emailed the pleadings and a telephone call made September 8, 2016

asking for concurrence in this motion, which was refused by Defendants’ attorney general.

(1) WHETHER THE MOVANT HAS A STRONG LIKELIHOOD OF SUCCESS ON THE

MERITS

From court pleadings filed in state court proceedings by Defendants, it appears there is

general agreement that:

- At the time of this filing, the subject initiative is the only initiative Defendant needs to

canvass this year and there is conceivably time to canvass and place Plaintiff’s initiative

on the November 8, 2016 ballot in compliance with all statutory deadlines if the Court

orders relief with a set schedule for compliance;

- MiLegalize, by law and custom, had more than 180 days to petition, with a time period

between gubernatorial elections, minus 160 days prior to election to placed on the ballot,

and MiLegalize timely submitted more than 354,000 potentially valid voter signatures,

including Plaintiff’s, on a petition form approved by Defendants;

- By statutory law Defendants use the Qualified Voter File (QVF) to canvass all petitions

including the one signed by Plaintiff, and Defendants would use the QVF to canvass even


the signatures for rebuttal. The 1986 BOC policy to rebut signatures has never been used

or enforced on any other person and cannot actually be reasonably complied with by any

person;

- MiLegalize has already submitted rebuttal information that is equal to or superior to any

other quantum of proof that approximately 138,000 signatures older than 180 days at the

time of filing are rebutted and that the persons, including Plaintiff, were registered to vote

at both the time of signing and within 180 days of filing;

- MiLegalize has an additional approximately 216,000 potentially valid signatures that are

either less than 180 days old or that may be rebutted if any canvass concludes the

signature is not of a qualified elector;

- There is no allegation that MiLegalize submitted less than the required 252,523 required

signatures on the petitions signed by Plaintiff—i.e. more than enough valid signatures for

ballot qualification have been submitted to Defendants.

The US Supreme Court and Sixth Circuit agree on the basic principles:

The initiative process is not guaranteed by the U.S. Constitution (Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir.1993)), but once a state confers upon its citizens the opportunity to participate in the initiative process, it may not limit that state-created right in contravention of federal fundamental law. Meyer v. Grant, 486 U.S. 414, 422-424, 108 S.Ct. 1886, 1892-93, 100 L.Ed.2d 425 (1988) (the right to circulate an initiative petition is "core political speech").

Brock v Thompson, 948 P2d 279, 287 fn 25; 1997 OK 127 (Okla 1997). See also Moore et al v

Johnson, No 14-11903, slip opinion p 9 (USDC ED MI, S Div; May 23, 2014) (John Conyers

case):

“The Registration Statute is, in all material respects, indistinguishable from the statute held facially invalid by the United States Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008).

The Sixth Circuit in

Nader held that it was “undisputable” that the plaintiff suffered a serious limitation on his First Amendment rights – a limitation triggering application of strict scrutiny


– when the statute was applied so as to disqualify signatures gathered by non- registered voters and to keep the candidate off the ballot. Id. at 475, 478. That is exactly what happened in this case. The Registration Statute was applied so as to disqualify Mr. Conyers’ signatures and keep him off the ballot. Nader holds that this amounts to a severe burden on Mr. Conyers’ First Amendment rights and requires the application of strict scrutiny. Id. at 475, 478. The reasoning of Nader also compels the conclusion that application of the Registration Statute severely burdened the First Amendment rights of the Plaintiffs who gathered the signatures that were disqualified.

The Registration Statute cannot survive strict scrutiny because it is not narrowly tailored to serve a compelling state interest. The State’s asserted interest is detecting and preventing election fraud. (See, e.g., ECF #27 at 25, where Secretary Johnson argues that “if strict scrutiny is required, the burden on Plaintiffs is justified by the State’s compelling interest in preventing fraud.”) Requiring circulators to register, Secretary Johnson contends, helps to combat fraud because the State knows where to find a registered voter “if questions arise regarding the validity or genuineness of signatures” (id.), and the State has the ability to subpoena a registered voter to provide testimony, if needed, in an investigation or prosecution of election fraud.

The State’s interest in combatting election fraud is compelling, but the State may protect that interest through a less restrictive means.”

Similar to the Conyers case, Plaintiff’s First Amendment rights, as circulators and signors

is being impermissibly burdened, and the state has no compelling interest. Even if the state does

have a compelling interest of preventing fraud, using the QVF rather than the 1986 policy is how

the state can accomplish that interest, and it can be accomplished through less burdensome and

more narrowly tailored means.

The federal courts have viewed denial of ballot access with “general agreement” that these

statutes “merit the closest examination” and cannot survive strict scrutiny review. Moore Id. citing

Libertarian Party of Virginia v Judd, 718 F.3d 308, (4th Cir 2013) at 316-17. Since TUAC v

Austin, the Sixth Circuit has recognized that "Nader's petition circulation activity constitutes core

political speech, and any regulation of that speech is subject to exacting scrutiny. See Buckley v

American Constitutional Law Foundation, Inc], 525 U.S. at 192 n. 12, 119 S.Ct. 636; id. at 210-

11, 119 S.Ct. 636 (Thomas, J., concurring) (applying strict scrutiny because registration


requirement impacted core political speech).” Nader v Blackwell, 545 F3d 459, 475 (CA 6, 2008).

This rule applies to the context of recalls in Michigan as well: “The circulation of recall petitions

is core political speech.” Bogaert v Land I, 572 F Supp 2d 883, 900 (USDC WD Mich 2008). In

its second opinion, which came after Nader v Blackwell had been published, the Bogaert v Land

court went into more detail:

This Court held in its opinion on the motion for preliminary injunction that Plaintiff had a substantial likelihood of prevailing on the merits because recall-petition speech is core political speech, it is subject to strict scrutiny, and the district residency and registration requirements are not narrowly tailored to achieve Michigan's compelling interest in the integrity of recall petitions and the combat of election fraud. (Dkt. No. 37, Op. 30-39.) Bogaert v Land II, 675 F Supp 2d 742, 749 (WD Mich 2009).

In this instance, Plaintiffs’ signatures and the other petition signers are being denied

initiative ballot access, under color of law, due to a constitutionally suspect 1986 BOC policy that

has never been enforced and is the epitome of not being the least burdensome means to achieve

the state’s interest (it is more like the most burdensome way), nor is it narrowly tailored. The

consensus among experts is that the policy cannot even be reasonably be complied with imposing

an undue burden on Plaintiffs’ free speech, association, equal protection and due process rights. It

has never been enforced. No one has even attempted to comply with it since 1986 until MILegalize

made good faith attempts in the past 7 months and found it impossible to comply, i.e. it was so

unduly burdensome it made exercise of rights illusory. The 1986 BOC policy does not even

achieve the state’s interest in the purity of elections because signor affidavits are not a sufficient

quantum or proof for qualified elector status. Plaintiff’s argument of using the QVF would go

farther in furthering the state’s interest of preventing fraud and ensuring qualified electors are

petition signors than even the Defendants are attempting to do. The Bureau is directed to use the

QVF to canvass petitions as it is…. so how can Defendants argue that a 1986 policy that is


unworkable is superior to the command of state law? It is of course, absurd, and the 1986 BOC

policy must be declared unconstitutional on its face and as applied.

MILegalize is prepared to rebut signatures if MCL 168.47a is not declared constitutional,

but like any rebuttable presumption, MILegalize is entitled to rebut once confronted with

something to rebut by the BOE in its sample of MILegalize’s petitions. Plaintiff deserves that

due process. The first order of business is for the BOE to canvass the petitions. If the canvass

actually reviews the signatures for qualified elector status as Appellants are required to do, then

Defendants can only refuse to count those signatures if they are known to be defective, void for

some other reason, or not potentially rebuttable.

BACKGROUND ON THE MICHIGAN STATUTORY INITIATIVE PROCESS 1. Plaintiff restates each previous allegation as if restated herein.

2. The rights to initiate citizen legislation by petitioning were intended by the framers of the

1908 and 1963 Constitutions to be a citizen-utilized fundamental check and balance on

government, a right granted by the People, to themselves as the People, an equal if not superior

right granted in the same Constitutions to the Legislature itself.

3. Michigan's 1908 constitution established the initiative only for constitutional amendments.

A vote of the people amended it in 1913 to include statutory initiatives. The gubernatorial periods

at this time were 2 years, and campaigns were able to petition for at least the gubernatorial period.

4. Michigan voters have had at least the time period between gubernatorial elections (in 1908

it was every 2 years, for post-1963 Constitution it is up to at least 4 years) to collect signatures for

an initiative.

5. There was little change until 1941 when another amendment gave defendants power to

check the names appearing on petitions against the names of registered voters.


6. The same year by PA 246 the legislature enacted the election law. In 1954 it was repealed

and re-enacted as our present law by PA 116, except the 1954 act now requires defendants to

prepare a 100-word statement to appear on the ballot stating the purpose of a measure which

reaches that stage.

7. Michigan’s 1963 Constitution, Art 2 Sec 9, grants the right of initiatives to the People.

8. In Michigan, citizens can amend their constitution under Art 2, Sec 12, or create a new

state statute through the initiative process under Art 2, Sec 9. Between 1963, when the Michigan

Constitution enabling citizen initiative went into effect, and 2014, 31 proposed amendments to the

state's constitution appeared on the ballot through the initiative process. Michigan voters approved

ten of those 31 proposed amendments. In that same time, 13 initiatives to change or create state

statutes appeared on the Michigan ballot through citizen initiative. Seven of those initiatives

passed. Additionally, some proposed citizen initiatives were passed into law by the Michigan

legislature without going to the ballot, but after sufficient signatures were collected to place the

matter before the legislature.1

9. At the 1963 constitutional convention, there was serious debate about the right to petition

actually being able to be a right that citizens could exercise, and not being so burdensome that it

was utilized primarily or wholly by special interest groups. At the time, the framers cited concerns

that only well-organized and well-financed organizations could muster the necessary signatures,

specifically mentioning the “UAW-CIO, ‘school groups’, and the Farm Bureau”, that could end

up being the primary utilizers of the right rather than ordinary citizens groups like MILegalize,

signed by Plaintiff.

1https://ballotpedia.org/History_of_Initiative_%26_Referendum_in_Michigan.


10. Upon information and belief, and upon attestation, in the current political climate, most if

not all initiatives that qualify for the ballot have to raise a minimum of $2 million in order to have

the resources to run and manage the scale and type of campaign necessary to qualify.

11. Upon information and belief, in the last few years, the primary funders of statutory

initiatives in Michigan have been labor groups, the chamber of commerce or its affiliates, particular

industries, or supported by billionaires.

12. Of most importance to this case is the distinction between statutory and constitutional

initiatives. In 1971 the supreme court decided Wolverine Golf Club v Secretary of State, 384 Mich

461; 185 NW2d 392 (1971). The case involved a statutory initiative about daylight savings time.

The court affirmed a lower court which ordered canvassers to accept and canvass statutory

initiative petitions, though they were filed less than “10 days before the beginning of a session of

the legislature,” in violation of MCL 168.472. The statute had stood on the books for 30 years.

The reason: article 2 section 9 did not permit the 10-day requirement:

We do not regard this statute as an implementation of the provision of Const.1963, art. 2, § 9. We read the stricture of that section, “the legislature shall implement the provisions of this section,” as a directive to the legislature to formulate the process by which initiative petitioned legislation shall reach the legislature or the electorate. This constitutional procedure is self-executing. As pointed out by Judge Lesinski in the opinion below ... : “It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. [citing cases]: 'The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.'” Whether we view the ten day filing requirement in an historical context or as a question of constitutional conflict, the conclusion is the same – the requirement restricts the utilization of the initiative petition and lacks any current reason for so doing. We hold that the petitioners were entitled to file their initiative petitions without regard to the ten day before session requirement..... Woodland v Michigan Citizens Lobby,

said similarly of article 2 section 9:


[It] is a reservation of legislative authority which serves as a limitation on the powers of the Legislature. This reservation of power is constitutionally protected from government infringement once invoked; once the petition requirements have been complied with, the state may not refuse to act.

13. An example of permissible “supplementary” legislation would be paper-size and type-size

requirements for petitions, all of which Plaintiff complied with as its petition was approved by the

BOE and BOC.

14. In 1973 the legislature amended the election law by adding 472a, the 180-day rebuttable

presumption statute. The statute purports to apply to both types of initiative, statutory and

constitutional.

15. MCL 168.472a is silent on the time period for how long a signature can be rebutted, but

based on the Art. 2, Sec. 9, the historical periods, precedents, and language for longer periods, the

1974 OAG opinion, and case precedent, 4 years is the most logical time period.

16. Between enactment of the 1963 Constitution and MCL 168.472a in 1973, petitions were

circulated for 4-year periods without any distinction for qualifying staleness of signatures beyond

180 days or for any time period whatsoever.

17. The popular bottle deposit initiative was enacted during this time period. Consumers Power

aides our understanding of the 1986 policy that what it does not do is define the initiatory petition

period to 180 days, or any length, for that matter.

18. While Plaintiff does not concede that the 180-day restriction is not facially invalid; any

ruling upholding the legislature's ability to retrospectively apply such forms of "legislative aid . . .

in the areas of circulation and signing" (Consumers id. at 9) would seem to arm the legislature

with an unbridled means to circumvent and impede the initiative process whenever it sees fit,

violating Plaintiff signer’s First Amendment free speech and association rights and Fourteenth

Amendment due process rights.


19. Considering initiatives are a crucial component of an effective checks and balances system

built into the Michigan Constitution, use by citizens of such a tool must be scrupulously guarded,

just like the independence of the judiciary. The Legislature cannot legislate away fundamental

rights without a vote of the People to change the 1963 Constitution itself, without violating

Plaintiff signer’s First Amendment free speech and association rights and Fourteenth Amendment

due process rights..

20. From 1973 to 1986, the BOE and BOC did not enforce the rebuttable presumption against

signatures older than 180 days because Attorney General opinions declared and the general

consensus of those in the know at the time was that it was unconstitutional.

21. In 1974 in OAG 4813, the attorney general (AG) opined the 180-day statute

unconstitutional as to both types, with differing reasoning for each type. As to article 2 section 9

the AG wrote:

This provision has been held to be self-executing [citing Wolverine Golf Club]. Although that provision concludes with language to the effect that the legislature should implement the provisions thereof, such language has been given a very limited construction by the Michigan Supreme Court, which held that this provision is merely: “... a directive to the legislature to formulate the process by which initiative petitioned legislation shall reach the legislature or the electorate....” .... I am consequently of the opinion that, as applied to signatures affixed to petitions which initiate legislation ... [the 180-day statute] is beyond the legislature's power to implement said section and is therefore unconstitutional and unenforceable.

22. Attorney General Frank Kelley further opined in OAG 4813, and repeated the language in

OAG 5528:

In OAG, 1973-1974, No 4813, p 171, 174 (August 13, 1974), it is stated: 'In other words, petitions and the signatures affixed to them are valid for as long as a particular basis (votes cast) remains in effect. 1963 Const, art 12, Sec. 2 and art 2, Sec. 9, both provide that the requisite number of signatures to initiative petitions is to be determined by a set percentage of votes cast for all candidates for governor at the last preceding general election at which a governor was elected. Therefore, the term for


governor determines the time periods during which petitions may be circulated for signature and any signatures gathered during such a period are valid. Under 1963 Const, art 5, Sec. 21, the governor serves a period of four years. Hence, signatures on petitions are to be considered valid so long as they are gathered during a single four-year term bounded on both sides by a gubernatorial election.'

23. In the ensuing 12 years, initiative petitions, including some with signatures gathered more

than 180 days before, were filed with the election bureau, certified by the canvassers, and approved

by vote of the people.

24. In 1986 in Consumers Power v Attorney General, 426 Mich 1 (1986), the supreme court

affirmed a judgment of the circuit court which overruled OAG 4813, but only “as applied” to

constitutional initiatives under article 12 section 2. The supreme court reasoned:

Of extreme importance to resolution of the present controversy is focus on the absence of a call for legislative action in [the 1908 constitution] and the clear presence of one in [article 12 section 2] as evidenced in the sentence: “Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.'”

25. There is no similar call for legislative action in article 2 section 9. Accordingly the decision

did not disturb the holding of OAG 4813 that the section was self-executing, and that the rebuttable

presumption is unconstitutional as applied to statutory initiatives.

26. In briefing Consumers Power in the circuit court, the successful plaintiff utility companies

contrasted constitutional and statutory initiatives, arguing that unlike article 12 section 2, the

purpose of article 2 section 9 was to “control legislative power” and “curb legislative authority”:

Restrictions by the legislature upon the right to initiate legislation are contrary to the purpose of art 2 § 9. Both art. 2, § 8 and § 9 are direct responses to suspicion of the Legislature.... Article 2, §§ 8 and 9, on the other hand, are antagonistic to legislative authority.... The plaintiff companies repeated this in oral argument: After [the 180-day statute] was enacted the Attorney General in 1974 ... issued an opinion [OAG 4813] in response to an inquiry regarding Article 2, Section 9, and declared that Article 2, Section 9, was self-executing, and cited the provisions and the findings and teachings of both the Court of Appeals and the Supreme Court in


Wolverine v Secretary of State.... The Attorney General was constrained to conclude that Article 2 section 9 was self-executing; and therefore, the attempt to regulate the submission of petitions to initiate legislation, which by statute had to occur 10 days prior to the beginning – or no later that 10 days prior to the beginning of a legislative sessions was unconstitutional. Expressing no disagreement with the foregoing about article 2 section 9, AG counsel pointed in the oral argument to the practical effect of the 180-day statute, particularly on un-moneyed grass-roots groups such as the plaintiffs in the present case: [T]he convention comments, the delegates were concerned about limiting constitutional amendments or limiting the right of initiative to highly organized special interest groups rather than allowing access to this right by broad-based, loosely organized grass roots type organizations. If the circulation period is limited to six months, I would submit that it would effectively remove the right of the people as a broad-based group to go out and, I guess, casually, without a great deal of organization, without a great deal of money, to circulate petitions and come in with an adequate number. Exhibit 7, page 41.29. The plaintiffs made no response to the AG's point about grass roots groups except to argue (successfully) the point was irrelevant in an action which (unlike the present case) arises under article 12 section 2.

27. The pleadings from Consumers Power, both in the Circuit Court (complaint and order of

Judge Bell), and the Michigan Supreme Court, only applied to constitutional amendments, not

statutory initiatives, and made clear distinctions between the ability of the Legislature to regulate

the process differently, with no authority for the legislature to regulate statutory initiatives.

28. Noting the “silence” of the 1963 constitutional convention delegates on the issue of

whether article 2 section 9 precludes aggregation of signatures collected before and after a

gubernatorial election, the court of appeals held in a referendum case, Bingo Coalition for Charity-

- Not Politics v Board of State Canvassers, it “does not.”

29. In August of 1986, in the throes of a hot summer shortly before that year’s election,

litigation occurred over the sudden enforcement of the rebuttable presumption as political forces

conspired to and succeeded in erecting ballot access barriers to keep L. Brooks Patterson from

placing a death penalty amendment before Michigan voters, as well as preventing a proposal that


would have allowed Michigan voters to vote to approve any utility rate increases. The BOC

adopted, without any statutory or constitutional authority to do so, a policy for rebutting older

signatures.

30. Thirty (30) years later, for the first time since the policy was enacted in the summer of

1986, the BOC is attempting to force the proponent of an initiative to rebut the presumption posed

by MCL 168.472a by either:

a. Proving that the person who executed the signature was properly registered to vote

at the time the signature was executed and;

b. Proving with an affidavit or certificate of the signer that the signer was registered

to vote in Michigan within the ‘180 day window period’ and further, that the

presumption posed under MCL 168.472a could not be rebutted through the use of

a random sampling process.

31. It is obvious from the language of the law and the policy that the consensus was and has

been that campaigns could continue to petition beyond 180 days, but a laborious policy was

enacted that may have deterred any persons from ever attempting to exercise their rights due to the

burdensome and unachievable nature of the process.

32. In 1998, the Qualified Voter File (QVF) was created pursuant to legislation. Historically

local clerks maintained Michigan voter files in a decentralized fashion. With the creation of the

QVF, the state has a centralized database of qualified electors. Michigan law states that anyone in

the QVF is a qualified elector.

33. Various laws required the BOE to use the QVF to canvass any petitions. The state

legislative mandate of using the QVF to canvass supersedes and renders null and void the 1986


rebuttal policy of the BOC as a matter of law, and is also in conflict with the earlier enacted

rebuttable presumption of MCL 168.472a.

34. This being a conflict of laws issue, the more modern enactment of the QVF and its actual

current use as customary by elections officials, contrasted with the never used 1986 policy, which

would be absurd to implement and impossible to comply with, as well as more burdensome and

costly for all parties, Plaintiff and Defendants, leads to a conclusion that the QVF canvassing

mandate supersedes the 1986 BOC policy.

35. In 1999 the legislature enacted a new election law, MCL 168.473b, again curtailing the

period within which signatures for a statutory (and constitutional) initiative could be collected:

Signatures on a petition to propose an amendment to the state constitution of 1963 or a petition to initiate legislation collected prior to a November general election at which a governor is elected shall not be filed after the date of that November general election.

36. This seems to clarify the issue somewhat that the time period for any approved petition is

between gubernatorial periods, generally.

37. With very few initiatives ever qualifying due to the extreme burdens of ballot access, it is

not often the legal or practical issues of initiative ballot campaigns receive the scrutiny of judicial

review (approximately 7 have qualified at the ballot in the last 53 year, 1 every 7.57 years).

38. The 1986 BOC policy was not publicly available online or in statute, or publications. It

was, and largely remains, a policy unknown to even most election attorney specialists. Upon

learning that the BOC had enacted a policy for rebuttals, MILegalize reviewed the policy and

concluded it was logistically and financially impossible to comply with it.

39. Starting in December of 2015, representatives of MILegalize participated in numerous

hearings with the BOC to demonstrate that the process for rebutting signatures was

unconstitutional and explore whether the policy was open for amendment to something more


narrowly tailored and less burdensome, which also would avoid litigation. The BOE staff,

apparently cognizant that the 1986 policy was unlawful and unworkable, crafted several proposed

policy revisions, all of which were not adopted by the BOC at several meetings over many

months—ultimately culminating in a 2-2 split vote at a BOC meeting on May 12 2016, the effect

of which was to not adopt Director Thomas’s final proposal for county clerks to use the QVF to

rebut signatures.

40. Various members of the public, the state’s top elections attorneys, and interest groups

testified over a 5-month period regarding the rebuttable presumption policy. The majority of

commentary was opposed to the 1986 policy and in favor of updating the policy to use the QVF

to rebut signatures. The only opposition to a policy update came from the Michigan Chamber of

Commerce and the oil and gas industry, whose opposition apparently was to the new policy

possibly allowing an anti-fracking petition to qualify. Of the persons commenting on the policy

fourteen of the eighteen were in favor of updating the 1986 policy.

41. The original 1986 comments submitted at the time of the 1986 policy for historical

perspective. The arguments discuss how statutory initiatives differ from constitutional

amendments as the Legislature has no authority to meddle with the initiative process.

42. At the December 3, 2015 BOC meeting, BOE Director Christopher Thomas stated in

regards to the superiority of using the QVF rather than the 1986 BOC policy, “So our data [BOE]

does show the exact history of where and when people were registered. So there is new data that

did not exist back then.” The December 14, 2015 transcript is also attached.

43. At the January 14, 2016 BOC meeting, BOE Director Thomas stated, “It was brought up

by Mr. Hank[s] that the current state of voter registration has changed significantly with a qualified

voter file and that it would be much more efficient to use that as a means to satisfy those two


requirements. We have concurred in that since the qualified voter file, in fact, does contain that

information and could be made available to the petitioners for the purposes of assisting them in

rebutting the stale signatures.” Thomas further stated that “….the Governor’s term of office still

applies…..” in regards to the petition time period.

44. At the same meeting, noted elections attorney Gary Gordon stated in regards to the lack of

thoughtful consideration in crafting the 1986 BOC policy that, “The existing policy is not a policy

that was adopted after --- after a long consideration, and we are treating it like its some kind of

Holy Grail that was--- that was adopted after – after, you know, great thought and so on. This

policy was adopted very precipitously by the Board….”

45. At the same meeting, Gordon noted that there is no statutory definition of stale or void, and

not much thought was given to the definitions of either term.

46. Mr. John Pirich, another noted elections attorney, echoed Mr. Gordon’s statements in

discussion with Thomas about the vague nature of MCL 168.472a, and what the Legislature may

have meant by those terms and how even those with the most elections experience could not agree

on the definitions of the terms. Ellis Boal, an attorney also testified and noted how Pirich and

Gordon in their written comments to the BOC affirmed that no one knows what the term stale

means.

47. Mr. Thomas, a widely respected state official, went further in his comments, stating that in

regards to the 1986 policy and constitutional and legislative prerogative, “…that we really should

not rely on the policy developed in 1986 until such time as the legislature gives us clarity.”

48. Thomas further stated, in regarding the difference of burdens placed on petitioners between

using the QVF versus the 1986 policy to rebut signatures, that an updated policy “….if adopted,

would certainly make it much, much easier to rebut signatures…”.


49. Further testimony was provided by political and petitions expert Alan Fox, of Practical

Political Consulting, whom provides MILegalize with services to rebut signatures, and who also

has experience in challenging initiative petitions. Fox stated in regards to the 1986 policy, “It bears

no resemblance to how petitions are validated now”, and that the initiative process, particularly

canvassing or attempting to rebut signatures is “….a monumental task; don’t underestimate it. It’s

– it’s not impossible, but it would be expensive and it will be time consuming in any petition

organization that tries to do it will very rapidly discover that no matter how you do it, it’s not an

efficient process.”

50. At the March 7, 2016 meeting of the BOC, Director Thomas commented to the effect that

in order for the BOE to canvass the petitions and do a random sample for validity as is common

practice, the BOE would have to know whether to include signatures more than 180 days old.

Prior discussion included that commentators recommended just sampling a petition submission,

which is Plaintiff’s position also.

51. Gordon again testified on March 7, noting the lack of definition of stale and void and how

different interpretations exist.

52. At the same meeting Director Thomas stated that the logistics of the 1986 signor affidavits

or clerk certifications were “…. a huge burden; no question about it.” He also further stated an

updated policy could “…..significantly reduce[d] the burden on the filer.”

53. At the March 24, 2016 BOC meeting, Jeffrey Hank testified how the BOE does not have

an affidavit form even if a campaign would attempt to get, in the instance of Plaintiff, over 200,000

affidavits from signors.


54. All undue burdens aside, without a guaranteed acceptable affidavit for individual signors,

it would be unreasonable for Plaintiff to risk the effort and cost of securing signor affidavits only

to find out after-the-fact that the affidavit form was insufficient.

55. At the same March 24 meeting, Attorney Ellis Boal testified and discussed with Director

Thomas, who affirmed that the BOE was applying the holding of Consumers to statutory

initiatives, despite the language of the holding only applying to constitutional amendments.

56. On April 25, 2016, BOC member Norm Shinkle, acting under color of law, abruptly left in

the middle of a BOC meeting, breaking quorum and preventing further discussion and action on

an updated policy. This caused some relative excitement as reporters chased Mr. Shinkle out of

the State Capitol as he claimed that he had a client to meet as the reason he left the meeting.

57. Nonetheless, MCL 750.478 makes it a crime for a public officer to engage in willful neglect

of duty.

58. At the May 12, 2016 BOC meeting, discussion continued on the policy update, with

Director Thomas presenting an updated proposal to the BOC, and stating that the 1986 policy is

“….pretty laborious process with 1500 city and township clerks and 83 county clerks.” Mr.

Thomas also stated how several local clerks had contacted the BOE and declined to rebut

signatures, presumably for either Plaintiff or the Michigan Cannabis Coalition.

59. Ultimately, the BOE put forward several updated proposals, none of which were adopted,

acting under color of law.

60. On May 28, 2016, three days before MILegalize’s petitions, signed by Plaintiff, were due

to the state if Plaintiff was seeking to be on the 2016 ballot, the Michigan House passed SB776

purportedly with immediate effect. The House vote broke down 57-52, largely along partisan lines,

with all Democrats voting against it, and six Republicans also voting against it. However SB 776


was not signed by the governor and made effective until after the MILegalize petition was filed

and therefore does not apply.

61. On June 1, 2016, MILegalize filed approximately 354,000 signatures, including Plaintiff’s,

on petitions to qualify for the statewide ballot. Any campaign seeking to place an initiative on the

ballot had to submit at least 252,523 signatures to qualify.

62. MILegalize submitted petitions with potentially more than 100,000 extra signatures than

the minimum requisite threshold, including Plaintiff’s signature.

63. On June 6, 2016, under color of law, the BOE issued a staff recommendation to the BOC

that MILegalize failed to submit enough signatures for ballot qualification due to more than

200,000 signatures, including Plaintiffs’, being collected more than 180 days prior to submission,

and the basis for not accepting those signatures was the 1986 BOC policy, acting under color of

law.

64. On June 6, 2016, Michigan Governor Rick Snyder signed into law SB776 with immediate

effect, which for the first time in Michigan history would limit the time period that Michigan

citizens have to circulate petitions for statutory initiatives and constitutional amendments.

65. SB776 amended MCL 168.472a to:

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.

66. It is apparently the position of the BOE that SB776’s amended language does not apply to

the subject MILegalize petition signed by Plaintiff, because they were filed with the state prior to

the amendment being signed by the Governor, filed with the Great Seal, or made effective.

67. Regardless which version of the 180-day statute is applied to Plaintiff, both violate

Plaintiff’s US Constitution al First Amendment right to freedom of speech and association and


Fourteenth Amendment rights to due process and equal protection, as it violates article 2 section

9 of the 1963 Michigan constitution, under Wolverine Golf Club v Secretary of State, regardless

that a later case Consumers Power v Attorney General upheld the rebuttable presumption language

as applied to petitions to amend the constitution under constitution article 12 section 2.

68. Article 2 section 4 of the constitution requires the legislature to “enact laws to regulate the

time, place and manner of all nominations and elections, except as otherwise provided in this

constitution.”

69. Article 2 section 9 covers both referenda and legislative initiatives (also called statutory

initiatives). Approved by con-con delegates in 1961-62 and enacted by the voters in 1963, it

provides as to statutory initiatives:

§ 9 Initiative and referendum; limitations; appropriations; petitions. The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative.... The power of initiative extends only to laws which the legislature may enact under this constitution. ... To invoke the initiative ..., petitions signed by a number of registered electors, not less than eight percent for initiative ... 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. ... Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature.... If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election.... Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature.... The legislature shall implement the provisions of this section.

70. Implementing statutes under article 2 section 9 are found at MCL 168.471 et seq. Together


they provide, in general terms, that an initiating entity asks defendant canvassers to approve the

format of a petition, which must contain both a short summary and the exact wording of the

proposed statute, including strikeouts of any provisions which will be eliminated. The initiator

prints and distributes petitions to circulators who begin collecting signatures on a date chosen at

the discretion of the initiator. The circulators get the signature, printed name, street address, voting

jurisdiction, zip code, and date of signing from registered voters throughout the state who want to

see the measure on the ballot. In signing, a signer asserts he/she is a “qualified and registered

elector” on the “actual date the signature was affixed.”

71. After collecting sufficient signatures, the initiator files the petitions containing them with

the defendants.

72. The initiator may file the petitions at any time but in order to get the proposal on the ballot

of a particular election, the filing must be by or before a cut-off date 160 days in advance. For the

November 2016 election the cut-off date is June 1, which is when MILegalize filed.

73. Under the version of MCL 168.472a applicable here (prior to SB776), signatures more than

180 days old on the date of filing are subjected to a rebuttable presumption against them. Under

the amended version of SB776, those signatures would be rejected altogether.

74. Defendants canvass the signatures. The term “canvass” is not defined and the method is

not specified in the constitution or statutes. But it is “impossible to canvass” in a timely way every

one of the hundreds of thousands of signatures on a petition. Accordingly the defendants typically

choose a random sample of 500 or more signatures. They test the sample for validity using the

“qualified voter file” (QVF).

75. The state established the QVF in 1997 and it has evolved overtime. The QVF documents

registered voters in the state. Any resident who is in the QVF is officially considered a voter


registered in Michigan. For every voter, the QVF includes the date of registration, street address,

and other data. A document of defendant SOS, “The Michigan Qualified Voter File: A Brief

Introduction,” explains the nature of the QVF:

While the QVF project was originally conceived as a response to the inefficiencies of the state's highly decentralized voter registration system ... the implementation of the National Voter Registration Act (NVRA) [52 USC 20501 et seq, a/k/a the 1993 “motor voter” law] greatly heightened the need for such an initiative. ... [T]he QVF links election officials throughout the state to a fully automated, interactive statewide voter registration database to achieve a wide variety of significant advantages....

76. The testing process used by the BOE by utilizing a random sample of submitted signatures

compared to the QVF determines a validity rate for signatures in the sample, expressed as a

percent. This rate is then multiplied by the total signatures filed by the initiator. The product is said

to be the number of qualified and registered elector signatures filed. Per article 2 section 9, for

both 2016 and 2018 that number will be compared to 252,523, the number which is obtained by

taking 8% of the number of those who voted for governor in 2014.

77. There is no practical reason the current sampling method could not be used to test

signatures more than 180 days old for qualified elector status, and that due to the acknowledgement

that things like canvassing or rebutting signatures are “labor intensive” and inefficient, and how

defendants “makes it easy….” to check qualified elector status, as well as preventing fraud, and

“…..eliminating much of the paperwork involved in tracking changes in voter registrations….”,

there is no rational basis even for imposing the 1986 BOC policy on Plaintiff when the QVF exists.

78. The SOS cites on its website that the QVF “Plays a Vital Role in Michigan's Election

System2” (emphasis added):

One of the unique challenges Michigan has faced is how to effectively administer

2Qualified Voter File (QVF)Plays a Vital Role in Michigan's Election System, available online as of June 14, 2016 at http://www.michigan.gov/sos/0,8611,7-127-1633_8716-27675--,00.html


an election system made up of election officials, administrators, clerks and poll workers from 83 counties, 277 cities, 1,240 townships and 256 villages. Add to that more than 7.4 million registered voters and the magnitude of the problem quickly becomes apparent. With such a large electorate, even straight-forward tasks such as updating voter rolls when people move to new jurisdictions become labor intensive. Unlike many other states which keep election records at the county or state level, Michigan's voter registration and participation records are kept at the local level. Given the size and complexity of Michigan's election system, one of the most significant developments to its elections management has been the Qualified Voter File (QVF). The QVF is a statewide computerized system that has made a tremendous impact. Among its many benefits, the QVF makes it easy for the Department of State to accurately and quickly forward registration information from its branch offices to local election officials. The QVF also reduces the chance for election fraud. When the QVF was first developed, more than 600,000 duplicate and ineligible registrations were removed from the state's voter rolls. In addition, the QVF eliminates much of the paperwork involved in tracking changes in voter registrations, making for a more effective and efficient process. More than 400 communities are connected to the QVF server in Lansing through the Internet, including the state's 83 county clerks who function as a QVF source for about 1,200 smaller cities and townships. The QVF has been designed to assist local election officials with many of their duties, including petition and candidate tracking; keeping an electronic election calendar; and absent voter processing. With the implementation of the QVF, Michigan has moved its election management system into the 21st century. Under the QVF, Michigan effectively meets the needs of a growing and increasingly mobile voter population while maintaining the integrity of the election process.

79. After canvassing the petitions, if defendants determine the initiator submitted more than

252,523 valid signatures, they certify the measure, at which point the remaining provisions of

article 2 section 9 kick in, including consideration by the legislature. The path to the ballot and a

vote of the people occurs after the legislature either votes against it or takes no action.

80. It is a violation of Michigan election law to sign a petition twice. Every petition must

contain the language, “WARNING A person who knowingly signs this petition more than once,


signs a name other than his or her own, signs when not a qualified and registered elector, or sets

opposite his or her signature on a petition, a date other than the actual date the signature was

affixed, is violating the provisions of the Michigan election law.”

81. The absurdity of it being illegal to sign twice unless someone is knowingly committing

fraud, and then placing undue burdens such as clerk certifications or signor affidavits on certain

signatures, complicates ballot access because rather than going through such a laborious process

as the 1986 policy suggests, people could just sign the petition again and an older signature could

be discarded—but Plaintiff is loathe to place hundreds of thousands of Michigan citizens in

potential election law jeopardy simply for exercising their First Amendment rights of free

expression, assembly, protest, redress for grievances, and to petition, by signing the petition again

in an attempt to get a more ‘fresh’ signature from the same person.

82. The term rebuttable presumption seems to appear only 7 times in Michigan election law,

once in MCL 168.472 dealing with the 180 day policy, and six other times all relating to various

initiative and recall petition laws where the QVF is checked to determine qualified elector status,

and if the QVF indicates the person is not a qualified elector, there is an opportunity to rebut that

presumption by submitting evidence. For initiatives see:

168.476 Petitions; canvass by board of state canvassers; use of qualified voter file; hearing upon complaint; investigations; completion date; disposition of challenges; report. Sec. 476. (1) Upon receiving notification of the filing of the petitions, the board of state canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors. The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers and the genuineness of signatures on petitions when the qualified voter file contains digitized signatures. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid. If the board is unable to


verify the genuineness of a signature on a petition using the digitized signature contained in the qualified voter file, the board may cause any doubtful signatures to be checked against the registration records by the clerk of any political subdivision in which the petitions were circulated, to determine the authenticity of the signatures or to verify the registrations. Upon request, the clerk of any political subdivision shall cooperate fully with the board in determining the validity of doubtful signatures by rechecking the signature against registration records in an expeditious and proper manner.

See also for recalls:

168.961(6) The qualified voter file shall be used to determine the validity of recall petition signatures by verifying the registration of signers. If the qualified voter file indicates that, on the date the elector signed the recall petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the recall petition, the elector was not registered to vote in the city or township designated on the recall petition, there is a rebuttable presumption that the signature is invalid………

168.961a(4) The qualified voter file may be used to determine the validity of a challenged petition signature appearing on a recall petition by verifying the registration of the signer. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid. (emphasis added).

INAPPLICABILITY OF SB776 aka 2016 PA 142 TO PLAINTIFF

It appears Defendants concede the inapplicability of 2016 PA 142 to Plaintiff’s case.

Defendants take the position that 2016 PA 142 has not been applied to Plaintiff’s petitions and

signatures filed with the BOE and BOC and will only be applied if a new petition is filed with

the Defendants. Def's Briefs at pp. 35-38. However, any order from the Court should make clear

to all Defendants that 2016 PA 142 is not a lawful basis to deny Plaintiff any rights somewhere

along the line in this process (such as a vote amongst the 4-person BOC for approval of ballot

language, delivery to the Legislature, notices, etc.), as far as petitions already filed.


In Doe v. Reed, the Court held that signing an official petition is expressive speech (albeit

with legal effect) because it involves the articulation of “a political view.” 130 S. Ct. 2811, 2817

(2010). Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002) , stated that a State

“having ‘cho[sen] to tap the energy and the legitimizing power of the democratic process, …

must accord the participants in that process the First Amendment rights that attach to their

roles.’ ” Ante, at 6.

(2) WHETHER THE MOVANT WOULD SUFFER IRREPARABLE INJURY ABSENT A

STAY

Michigan election law states that the Board of Canvassers must make a declaration of

sufficiency or insufficiency of the petitions at least 2 months prior to the election, MCL

168.477(1), and also that the canvass must only be completed 2 months prior to the election.

MCL168.476(2). That date falls within September 2016. There is still time for the Court to do

justice in this case.

The primary motivation in this suit is having Plaintiff’s signature along with all of the other

350,000 signatures be completely canvassed for ballot access. Defendants ignore or fail to offer a

valid defense for their actions related to Plaintiff’s constitutional claims including whether the

Legislature has authority to establish a rebuttable presumption in the first place; whether the BOC

has authority to implement the 1986 rebuttable presumption policy; and whether statutory

mandates related to the Qualified Voter File (QVF), and how now having the QVF, as opposed to

when the 1986 BOC policy was put into effect, effects the whole issue of rebutting stale signatures

even if the rebuttable presumption is lawful. Defendants’ pleadings are devoid of a defense to the

strict scrutiny analysis of the 1986 policy because Defendants have no plausible defense to argue,


weakly premising any defense on the incorrect assessment that Plaintiff has no First Amendment

claims, and ignoring relevant law regarding initiatives. On these dispositive issues it is clear relief

should be granted and judgment entered for Plaintiff.


THERE IS TIME FOR THE COURT TO PROVIDE RELIEF There are approximately 100 days until the next election. There is time for the Court to order relief

and have Plaintiff’s initiative placed on the November 2016 ballot. Defendants must perform the

canvass immediately to trigger enough time for the statutory 10-day challenge period, and the 40-

day Legislative adoption or alternative process to occur, and the time period for approval of the

actual 100-word ballot language, with final ballots ready for clerks at the earliest, ideally, by

between September 9-24, 2016.

Military ballots need to be ready by September 24th, so there is still enough time for a

normal canvass-- in 2012 the BOE and BOC processed six initiatives with vastly more signatures,

time and energy required to canvass one petition this year—the one signed by Plaintiff. And the

process here should be quicker because Plaintiff provided on June 1, 2016, information already

rebutting at least 137,000 signatures, which is far more extensive of a canvass than even the state

admittedly performs with its random sampling process. Defendants could have the petitions

adequately canvassed in a matter of days if ordered to.

The BOE can clearly canvass a petition much quicker if necessary. If it was known by the

BOE that it would take sixty days then Defendants should have in place processes for canvassing

petitions turned in by any lawful submission date to allow sufficient time to perform duties.

Defendants admit they will only sample 500 to 4,000 signatures. A 500-signature sample, or even

4,000, could be completed in one or two days, with notice immediately given to challengers of the

results assuming the MILegalize petition qualifies. MILegalize has already canvassed and

provided proofs of approximately 134,000 signors more than Defendants would ever verify with

their own canvass. The court should order immediate sampling with no more than a few days for

Defendants to comply. Defendants have had Plaintiff’s petitions since June 1 and could have


diligently taken steps to canvass them by now, so any claims of prejudice due to a short timeframe

are Defendants own fault.

Considering that MiLegalize has already proven by clear and convincing evidence that it

filed enough valid voter signatures and that it can comply with a fair rebuttal process if necessary,

there is no justification for Defendants to not immediately take all necessary steps to process and

approve MiLegalize’s petitions, which Plaintiff signed, for ballot qualification.

THE 1986 BOARD OF CANVASSERS POLICY IMPOSES UNDUE BURDENS AND IS UNCONSTITUTIONAL

The 1986 policy runs afoul of the First Amendment under a strict scrutiny analysis. The

policy has no compelling state interest, it is not the least burdensome means of achieving a

compelling interest even if one exists, and it is not narrowly tailored. The BOC policy, by

purporting to require that every signor more than 180 days old must also sign an affidavit, requiring

a two-person team with a notary to locate 200,000-plus persons to accomplish, is in this case,

practically the same as the BOC doubling the number of required signatures under Art 2, Sec 9 to

qualify for the ballot (the BOC policy is even more burdensome then just requiring new

signatures—which cannot be accomplished because it is a misdemeanor to sign a petition twice).

The other purported option, to ship boxes of petitions and to coordinate with 1500-plus municipal

clerks to rebut the signatures on an ongoing basis, is seemingly extremely laborious and

burdensome. The narrowly tailored option—to use what state law commands to rebut the

signatures—the QVF—would be the only lawful and acceptable option, and it is the option the

BOC refuses to comply with.

A state need not grant initiatory petition rights to its citizens. But once a state does grant

initiatory petitioning rights, those rights must comport with federal law including surviving a strict


scrutiny analysis of burdens placed on the process. The right to vote is a fundamental right, see,

e.g., Kramer v Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583

(1969); Reynolds v Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). While

petitioning is not the same as the right to vote, petitioning is core political speech, which implicates

First Amendment strict scrutiny review when it comes to the 1986 BOC policy, and the First

Amendment, like all other fundamental and many other rights, applies to the states through the

14th Amendment. Michigan’s constitution provides at least as much protection for these rights as

the federal constitution, and in the case of petitioning for statutory initiatives, provides even greater

rights under Art 2, Sec 9 of the 1963 Constitution. The People’s Art 2, Sec 9 initiative rights should

not be so flippantly infringed by Defendants.

As the Court stated in Taxpayers United v Austin regarding Lott:

In Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), a case more recent than our unpublished decision in Lott v Austin, 1987 WL 38525, 1987 U.S.App. LEXIS 11163 (6th Cir. August 18, 1987), the Court struck down a Colorado provision that made it a felony to pay anyone to circulate a petition to get an initiative placed on the ballot. A unanimous Court concluded that although the right to an initiative is not guaranteed by the federal Constitution, once an initiative procedure is created, the state may not place restrictions on the exercise of the initiative that unduly burden First Amendment rights. Although Meyer dealt with a limitation on communication with voters and not with methods used to validate and invalidate signatures of voters to an initiative petition, the principle stated in Meyer is that a state that adopts an initiative procedure violates the federal Constitution if it unduly restricts the First Amendment rights of its citizens who support the initiative. Accordingly, we conclude that although the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution; therefore, we conclude, as did the district court, that the plaintiffs have stated a colorable claim under § 1983, giving the district court jurisdiction over this action. Duke Power Co v Carolina Environ Study, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Oneida Indian Nation v Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997),

the Court held in determining whether an election law violates the First Amendment a court should


weigh the burden of the restriction against the State's interests:

Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Id. at 358, 117 S.Ct. 1364 (internal quotations and citations omitted); see also Citizens for Tax

Reform v. Deters, 518 F.3d 375, 387 (6th Cir.2008) (“Although a state need not present ‘elaborate,

empirical verification’ of the weight of its purported justification when the burden is moderate, it

must come forward with compelling evidence when the burden is higher”) (citations omitted).

Bogaert v Land II, 675 F Supp 2d at 749-750 is another oft quoted case. Accordingly, even under

flexible analysis, the scrutiny here should be strict: the proposed regulation must be narrowly

tailored to serve a compelling state interest. Furthermore, the Bogaert v Land II court found

justification for not even bothering with the flexible approach, and rejected the distinction in

petition types.

Defendant’s attempt to distinguish recall-petition circulation from other forms of petition circulation is not persuasive. Contrary to Defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recall-petition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute Defendant’s argument for distinguishing recall petitions from initiative or candidate petitions. . . . [R]ecall-petition circulators resemble both initiative-petition circulators and candidate-petition circulators because they similarly seek ballot access.

Bogaert v Land II, 675 F Supp 2d at 750-751.

This Court's previous determination that § 957 posed a severe burden on recall-petition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232 F.3d 135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir.2000). Subsequent to this Court's opinion on the preliminary injunction motion, the Sixth Circuit issued its opinion in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in which it joined the other federal circuits


in extending the principles established in Buckley regarding initiative-petition circulators to candidate-petition circulators. Id. at 475-76 (applying strict scrutiny and holding that Ohio’s registration and residency requirements for candidate-petition circulators violated the First Amendment). See also Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to analyze Oklahoma’s ban on non-resident initiative-petition circulators).

None of Defendant’s arguments convince this Court that its previous determination that the registration and residency requirements of § 957 impose a substantial burden on Plaintiff’s First Amendment rights and are not narrowly tailored to Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud was erroneous. The Court stands by its previous analysis. Rather than reiterating that analysis herein, the Court reaffirms and adopts that analysis by reference and declares that the requirements in Mich. Comp. Laws § 168.957 that recall-petition circulators be registered to vote and be residents of the legislative district of the official to be recalled are unconstitutional as a violation of the First Amendment of United States Constitution, applicable to the State of Michigan through the Fourteenth Amendment. (Dkt. No. 37, Op. 33-39.)

Bogaert v Land II, 675 F Supp 2d at 752. In Buckley, the Supreme Court struck down a Colorado

statute which required, inter alia, that initiative-petition circulators be registered voters. Id. The

Court extended its holding in Meyer v. Grant, 486 U.S. at 414, in which it rejected Colorado's ban

on paying ballot-initiative petition circulators. Justice Ginsburg, writing for the Buckley majority,

discussed the fundamental constitutional rights at stake in election petition circulation:

Petition circulation, we held, is "core political speech," because it involves "interactive communication concerning political change." First Amendment protection for such interaction, we agreed, is "at its zenith." We have also recognized, however, that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Buckley, 525 U.S. at 183 (internal citations omitted.). In this case, as in Meyer, the requirement "imposes a burden on political expression that the State has failed to justify." Id. at 428. Buckley, 525 U.S. at 194-195 (some internal citations omitted).

Keeping Buckley in mind, we examine the character and magnitude of the burden imposed by

requiring both the rebuttable presumption and the 1986 BOC policy on First Amendment rights

and the extent to which the law serves Michigan’s interests. Burdick v. Takushi, 504 U.S. 428,

433-434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Laws which are severely burdensome to


constitutional freedoms must be narrowly tailored to serve compelling state interests, while less

burdensome statutes receive less exacting scrutiny. California Democratic Party v. Jones, 120

S.Ct. at 2412.

The imposition of a rebuttable presumption requirement and the impossible to comply with

1986 BOC policy burdens the petitioners’ and others' core freedoms of political expression and

association. See Buckley, 525 U.S. at 183; Krislov, 226 F.3d at 858, 860-861. That is, petitioners

may not associate for purposes of political expression by organizing nominating petition signature

drives with whomever they wish. See Meyer, 486 U.S. at 424 ("The First Amendment protects

appellees' right not only to advocate their cause but also to select what they believe to be the most

effective means for so doing."). It also limits the ability of petitioner’s to conduct a citizens

campaign to educate Michigan voters over an extended period of time. In this case, MILegalize

found it more effective and important to run an 11-month campaign to educate Michigan voters

and encourage discussion and inquiry into the proposal than a campaign limited to 180 days.

Regardless of how long MiLegalize petitioned for, the initiative would be heard at the same

election and the issue and language would remain the same.

Any suppression of voter rights must also be strictly construed. “[T]he right to recall public

officials is an extremely important one which must be carefully guarded by the courts [. . .] statutes

governing recall should be construed in favor of the right's exercise and [. . .] limitations on the

right should be strictlyconstrued[.]” Schmidt v Genesee Co Clerk, 127 Mich App 694, 701-702;

339 NW2d 526 (1983).


(3) WHETHER GRANTING THE INJUNCTION WOULD CAUSE SUBSTANTIAL

HARM TO OTHERS

Others would not be substantially harmed by granting the injunction because Plaintiff is

only asking that Defendants do their job in providing ballot access according to the state

constitution, in a manner which does not violate Plaintiffs’ state and federal constitutional rights

as outlined above. A temporary restraining order compelling the defendants to canvass the

signatures promptly enough to make the November ballot would not harm others but rather put

the issue to a vote as is required under these circumstances to protect plaintiff’s constitutional

rights.

FAILURE TO USE THE QVF AND TO ENFORCE THE 1986 BOC POLICY IS ARBITRARY AND CAPRICIOUS

Consider the facts and law: The BOE admits it uses and can use the QVF to canvass Plaintiff’s

petitions. Def’s Ex 1- Malerman Affidavit. Given that, there is no rational basis to utilize the

1986 BOC Policy. Defendants are required to use the QVF by law. They are only going to

sample between 500 and 4,000 signatures. Plaintiff already used a public version of the QVF to

rebut approximately 138,000 signatures and gave the BOE records of such, yet Defendants are

trying to argue, or rather in their motion completely fail to argue, how they can enforce the 1986

BOC policy in light of this. Pltf Ex AA- Alan Fox Affidavit. With serious questions about the

legislative authority to even enact a rebuttable presumption, there is even less authority, if any

(none has been cited), for the BOC to enact any rebuttable presumption policy, let alone an

unworkable policy that has since been pre-empted by changes in state law and technology.

Defendants in their 38-page response fail to offer a valid defense or deny Plaintiff’s allegations

of the impossibility of utilizing the 1986 policy, but cite it as justification for denying Plaintiff

ballot qualification. It is simple: Defendants have no valid justification for not counting the


signatures of registered voters on Plaintiff’s petitions. The Affidavit of Malerman is clear the

relevant quantum of proof required by state law for checking voter registration and rebutting

signatures is the QVF. The 1986 policy and several laws conflict. Analyzing in pari materia

where the statutes are in conflict, the rules of the order of priority are: Where a law in pari

materia with a previously passed law conflicts with the previously passed law, the conflicting

portions of the latter law prevail over the provisions of the earlier law, and where a general law

and a specific law conflict, the relevant portions of the specific law prevail, without regard to

when the laws were enacted, unless there is specific legislative history showing the legislature

intended a different result. N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n (DPOA),

900 F.2d 903, 912 (6th Cir. 1990). Controlling law requires Defendants utilize the QVF.

(4) WHETHER THE PUBLIC INTEREST WOULD BE SERVED BY GRANTING THE

INJUNCTION.

The rebuttable presumption for signatures came about in 1973 after a woman referred to

in the media as a Grand Rapids "housewife" came close to getting enough signatures on an

initiative to reduce legislator pay and pensions (at that time, and at all times prior, you could

circulate a petition for at least the 3 year, 7month period between governor elections, and given

that the Legislature cannot legislate away your constitutional rights, you still can. The

Legislature, in reaction to an attempt to lower their salaries, implemented the restriction, which

afterwards, was not enforced until 1986, because the People's Lawyer former Michigan Attorney

General Frank Kelley declared it unconstitutional. One of the legislators that voted for it

afterwards changed his mind after he realized it made citizen-originated petitions (meaning those

not run by big money or big political lobby groups) impossible.


The power struggle dynamic of trying to limit the people's voice is not new. The

MILegalize and Plaintiffs’ battle is only it's latest iteration, but perhaps the greatest chance to

regain our lost rights in a long time. Who knows when we will have another chance to restore the

right of ballot access if Plaintiff does not succeed in this litigation.

Further, “it is always in the public interest to prevent a violation of a party’s constitutional

rights.” G&V Lounge Inc v Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1979)

citing Gannett Co Inc v DePasquale, 443 US 368, 383 (1979). The state has failed to justify any

reason for enforcement of both the rebuttable presumption and the 1986 BOC policy.

“Statutes must be struck down if they reduce the number of qualifying initiatives and the

exchange of ideas.” Meyer, 486 US at 421. Both MCL 168.472a and the BOC’s 1986 rebuttable

presumption policy that is impossible to comply with must be struck down as unconstitutional.

The 1986 Board of Canvassers policy is blatantly impossible to comply with and cannot be used to usurp the People’s rights under Art 2, Sec 9 or the right of MILegalize to rebut the presumption of staleness with a clearly sufficient quantum of proof. This is a denial of due process and the Board of Canvassers cannot change the longstanding legal standard of what a rebuttable presumption in the law means—it simply means something is presumed until sufficient evidence is submitted as proof to overcome the presumption. MILegalize overcame the presumption yet its signatures are not being counted.

The 1986 BOC alleged policy is impossible to comply with by any means, meaning that the BOC

has made the “rebuttable presumption” now “irrebuttable”, because the BOC knows that

MILegalize and no one ever will be able to comply with the policy. This is a clear violation of

both substantive and procedural due process under the 5th and 14th Amendments and Michigan’s

constitution Art I, Sec 17.

Just how burdensome is the 1986 policy? MILegalize had to rebut over 200,000 signatures.

That means that each original petition sheet would have to be sent to each municipal clerk for

every signor on an ongoing, rolling basis. So a 10-line petition could in theory have to go to ten


different clerks-- the same single petition sheet. So MILegalize would have to hire staff to oversee

and manage this crucially important process have to mail the same petition to each clerk, whom if

they did not refuse to rebut the signatures could rebut them on their own time schedule, and also

demand that MILegalize pay for it. It's hard to calculate the specifics, but assuming the 55,000

petition sheets turned in contained approximately 200,000 signatures to rebut, this has MILegalize

engaging in at least another 200,000 "transactions" with various clerks, all on a rolling, daily basis.

This would cost conservatively at least another $125,000 in postage, assuming only one mailing

to each clerk. That does not count manpower hours, phone calls to explain the process, etc. Nor

does it count the cost the clerks would charge MILegalize for the process. For example, a single

Ingham County petition might have to be sent first to the city clerk in Lansing, then back to the

campaign. Then it could be sent to the Meridian Township clerk, then back to the campaign. Then

to the Lansing Township clerk, then back to the campaign. Then to the Delhi Township clerk, then

back to the campaign. Then to the East Lansing city clerk, then back to the campaign. Then to the

Williamston clerk, then back to the campaign. Then to the city of Mason clerk, then back to the

campaign. Then to the Leslie clerk, then back to the campaign. Then to the Stockbridge clerk, then

back to the campaign. Assuming each clerk transaction would take at least a few days in the mail

each way, and even if it was processed and sent back on the same day (unlikely), it could take two

months or more to rebut the signatures on a single petition page. And MILegalize would have to

do this everyday for months ultimately with tens of thousands of petition sheets being sent to the

state’s 1500-plus clerks. The burden is so insurmountable and costly no campaign prior to

MILegalize has ever even tried to comply with it.

If the burdensome logistics of the 1986 policy are not enough to convince everyone that

the policy is too burdensome, the fact that clerks have no legal duty to assist MILegalize, and the


fact that clerks refused to assist MILegalize and others, means that the policy could not be

complied with even if MILegalize had unlimited manpower and financial resources and did

everything in its own power to facilitate the process.

Even more damning, the Bureau of Elections told clerks they did not have to assist

campaigns in rebutting. So at the same time Defendants are demanding MILegalize can only rebut

using the 1986 policy, Defendants are at the same time frustrating MILegalize ability to do so by

telling clerks they do not have to comply. This is undisputed from the clerks emails with the Bureau

in the lower court record.

From the lower court record it is also clear, no clerks have ever rebutted signatures, nor

have any clerks offices received training to do so. Part of the reason is likely that the 1986 policy

runs afoul of Headlee, as it is a post-1978 unfunded mandate to local governments that was not

funded at the time of enacting Headlee, and no funds were appropriated to cover municipal clerks

office to perform the service. Unfunded mandates are prohibited by Headlee and another reason

the 1986 policy is not lawful.

Lastly, asking the board of canvassers, the same body that is not neutral and that refused

to adopt a workable policy to rebut signatures, to then by the same body that determines the

sufficiency of signatures, is troubling from a due process perspective. The board members were

clearly not neutral, with one of the four board members leaving during two meetings while the

policy was being discussed, one time even running out of the Capitol and being chased by

reporters. That same board and person then make the decision not to count Plaintiff’s and the other

petition signers’ signatures due to failing to comply with the board’s policy that the board knows

to be unworkable.


Courts across the country have recognized that a law or policy cannot be impossible to

comply with. In July 2016, the US Supreme Court struck down Texas’s “admitting privilege” law

because it placed an undue burden on Texas women seeking abortions. The rationale argued was

that because hospitals did not have to grant privileges, abortion clinics would have to close. Whole

Woman’s Health v Hellerstedt. The law was struck down because it placed “…. a substantial

obstacle in the path of women seeking a previability abortion, constitute an undue burden on

abortion access, and thus violate the Constitution.” Similar reasoning applies to this case. The 1986

BOC policy places “substantial obstacles” on Appellants petitioning rights, constituting an “undue

burden” that “violates the Constitution.”

Request for Relief

Order Defendants to stop any printing of ballots until this matter is resolved;

Order Defendants to canvass and count the MILegalize petition signatures, including

Plaintiff’s, immediately, and to complete the work within 3-days, in order to give time to put the

100 word summary on the November 2016 presidential election ballot.

It appears Defendants concede the inapplicability of 2016 PA 142 to Plaintiff’s case,

from state court documents filed by Defendants. Defendants take the position that 2016 PA 142

has not been applied to Plaintiff’s petitions and signatures filed with the BOE and BOC and will

only be applied if a new petition is filed with the Defendants. Def's Briefs at pp. 35-38.

However, any order from the Court should make clear to all Defendants that 2016 PA 142 is not

a lawful basis to deny Plaintiff any rights somewhere along the line in this process (such as a

vote amongst the 4-person BOC for approval of ballot language, delivery to the Legislature,

notices, etc.), as far as petitions already filed.


September 8, 2016. s/Thomas Lavigne___________ Thomas Lavigne (Mich Bar P58395) Law Firm of Cannabis Counsel PLC 2930 Jefferson Avenue East Detroit, MI 48207 (313) 446-2235 Michael Komorn (P47970) Attorneys for Plaintiffs


UNITEDSTATESDISTRICTCOURTEASTERNDISTRICTOFMICHIGAN

SEANMICHAELMYERS,and CASENO._____________________DAKOTABLUESERNA Plaintiffs HON.________________________v. RUTHJOHNSONMICHIGAN TROSECRETARYOFSTATE,CHRISTOPHERTHOMASDIRECTOROFBUREAUOFELECTIONS,andBOARDOFSTATECANVASSERS,(suedintheirofficialcapacities) Defendants.

TEMPORARYRESTRAININGORDER

HavingconsideredPlaintiffs’ExParteMotionforaTemporaryRestrainingOrder,and

findingthat:

(1)Plaintiffshaveastronglikelihoodofsuccessonthemerits,

(2)Plaintiffswouldsufferirreparableinjuryabsentaninjunction,becausetheir

ownsignaturesandsignaturestheygatheredascirculatorswouldbediscarded

placinganundueburdenonPlaintiffs’first,fifthandfourteenthamendment,

corepoliticalspeech,politicalassociation,equalprotectionanddueprocess

rights.

(3)Grantingtheinjunctionwouldnotcausesubstantialharmtoothers,&

(4)Thepublicinterestwouldbeservedbygrantingtheinjunction.

TheSixthCircuithaslongheldthatadistrictcourt“possessesdiscretionover

whethertorequirethepostingofsecurity.”MoltanCo.v.Eagle.PicherIndus.,Inc.,55

F.3d1171,1176(6thCir.1995).Thesecurityrequirementhasbeenwaivedwherean


injunctionisnotlikelytoresultinharmtothepartyenjoined,wheretheexerciseof

constitutionalrightsisatissue,andwhereasuitisbroughtinthepublicinterest.13

Moore’sFederalPractice,§65.52(3dEd.).Inaddition,othercircuitshaveheldthatin

publicinterestlitigation,thedistrictcourthasthediscretiontodispensewiththe

securityrequirementortorequirenominalsecurityifrequiringsecuritywould,ineffect,

denyaccesstojudicialreview.SaveOurSonoran,Incv.Flowers,408F.3d1113,1126

(9thCir.2005).Thiscourtwaivesthesecurityrequirement.

ITISHEREBYORDEREDTHAT:

Defendantsshallstopanyprintingofballotsuntilthismatterisresolved;

DefendantsshallcanvassandcounttheMILegalizepetitionsignatures,including

Plaintiffs’,immediately,andtocompletetheworkwithin3-days,inordertogivetimetoput

the100wordsummaryontheNovember2016presidentialelectionballotformailouton

September24thtooverseasmilitarypersonnel.

That2016PA142isnotalawfulbasistodenyPlaintiffsanyrights,astheMILegalize

petitionswerefiledpriortotheGovernor’ssigning2016PA142intolaw.

Thatthisrestrainingorderinanyeventshallexpirewithin14days.

Plaintiffs’attorneyrepresentsthathehassentafile-stampedcopyoftheinitial

pleadingstothelawyersfordefendantsandisperfectingserviceofprocess.Becausetheballots

arebeingsenttotheprinterstodayandbecauseplaintiffs’affidavitsclearlyshowthat

immediateandirreparableinjuryshallresulttoplaintiffsbeforetheStatecanbeheardin

opposition,thecourtgrantsthismotion.


ThecourtherebyschedulesapreliminaryinjunctionhearingforSept.___,2016at

______inthiscourtroom__________.

Date:_________________ ___________________________________ USDistrictCourtJudge

Time:_________________


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