Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers

• Decision Date: 21 January 2021
• Docket Number: No. 354270,354270
• Citation: 966 N.W.2d 742,335 Mich.App. 384
• Parties: COMMITTEE TO BAN FRACKING IN MICHIGAN, Plaintiff-Appellant, v. BOARD OF STATE CANVASSERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

335 Mich.App. 384

966 N.W.2d 742

COMMITTEE TO BAN FRACKING IN MICHIGAN, Plaintiff-Appellant,

v.BOARD OF STATE CANVASSERS, Defendant-Appellee.

No. 354270

Court of Appeals of Michigan.

Submitted December 8, 2020, at Detroit.

Decided January 21, 2021, 9:00 a.m.

Law Office of Matthew S. Erard, PLLC (by Matthew Erard) and Ellis Boal, Charlevoix for the Committee to Ban Fracking in Michigan.

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

Before: Cavanagh, P.J., and Jansen and Shapiro, JJ.

Jansen, J.

In this constitutional challenge to MCL 168.472a, plaintiff, the Committee to Ban Fracking in Michigan (CBFM), appeals as of right the order of the Court of Claims granting summary disposition in favor of defendant, the Board of State Canvassers, under MCR 2.116(I)(1) on the basis of a lack of subject-matter jurisdiction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is the third appeal before this Court in this matter. In 2017, this Court summarized the facts of this case as follows:

[CBFM] is engaged in a statutory initiative campaign that seeks to include a ballot option to ban horizontal hydraulic fracturing, which is commonly known as "fracking." ... [CBFM] sought to have the issue on the 2016 ballot and, on April 14, 2015, the Board of State Canvassers approved the form of CBFM's initiative petition. On May 22, 2015, [CBFM] began circulating [its] petitions and collecting signatures. By November 18, 2015, the 180th day, [CBFM] had collected over 150,000 signatures—but that was less than the required number of 252,523. By June 1, 2016, the deadline for filing initiative petitions for the November 2016 ballot, [CBFM] had over 207,000 signatures—but, again, that was less than the required number. [CBFM] is apparently continuing to collect signatures with the same petition sheets in an effort to have the fracking issue on the November 2018 ballot. Accordingly, on June 1, 2016, [CBFM] filed this action [in the Court of Claims] challenging the 180-day rule set forth in MCL 168.472a .... [ Comm. to Ban Fracking in Mich. v. Dir. of Elections , unpublished per curiam opinion of the Court of Appeals, issued March 14, 2017 (Docket No. 334480), pp. 1-2, 2017 WL 993221 ( Comm. to Ban Fracking I ).]

The Court of Claims granted summary disposition of CBFM's claims in favor of the Director of Elections under MCR 2.116(C)(8) on the basis that CBFM failed to establish the existence of an actual controversy because CBFM had failed to collect the required number of signatures or submit its initiative petition to the Secretary of State. Id. at 2. This Court affirmed, concluding that "because no actual controversy ripe for declaratory relief exists, the Court of Claims lacked jurisdiction to issue a declaratory judgment and properly dismissed [CBFM's] complaint." Id. at 5.

CBFM again appealed in this Court in 2019. This Court summarized CBFM's activities following its first appeal as follows:

[CBFM] continued to collect signatures and on November 5, 2018—the day before the 2018 election—[CBFM] sought to file the initiative petition with the Secretary [of State] for a vote, if necessary, in the 2020 election. According to [CBFM], [it] had collected about 270,962 signatures. However, the Director of Elections refused to accept the petition because the front-page summary stated that it was to be voted on at the November 8, 2016 general election and that election had already passed. [CBFM] filed a complaint in this Court seeking a writ of mandamus requiring the Director to accept their legislative initiative petition. We denied the complaint. Comm. to Ban Fracking in Mich. v. Secretary of State , unpublished order of the Court of Appeals, entered November 15, 2018 (Docket No. 346280).

In December 2018, [CBFM and its director] filed the instant complaint [against the Secretary of State, the Director of Elections, and the Board of State Canvassers], challenging the Secretary's action in several respects including a claim that the Secretary had usurped the power of the Board [of Canvassers], which is the only entity charged by statute with determining the sufficiency and adequacy of an initiative petition. [CBFM] also alleged that the petition did not violate MCL 168.471, which provides that petitions must be filed at least 160 days before the election at which the proposal would be voted on. [Comm. to Ban Fracking in Mich. v. Secretary of State , unpublished per curiam opinion of the Court of Appeals, issued April 2, 2020 (Docket No. 350161), p. 2, 2020 WL 1645853 ( Comm. to Ban Fracking II ).]

The Court of Claims ultimately granted summary disposition of CBFM's claims in favor of the defendants, determining that the erroneous date listed on the initiative petition violated the statutory requirements of MCL 168.471. Id. at 2-3. CBFM appealed, and this Court reversed, concluding that because initiative petitions are not required to state the election at which the proposed law will be voted on, the petition's reference to a previous election did not preclude the question from appearing on the 2020 ballot. Id. at 3-4. Further, this Court ordered the Secretary of State to accept the initiative petition as of November 5, 2018, and forward it to defendant for canvassing. Id. at 4.

On June 8, 2020, defendant certified that CBFM's petition was insufficient because approximately 89% of the signatures had been collected more than 180 days before the petition had been filed. Therefore, MCL 168.472a barred defendant from counting those signatures. Following defendant's determination that the petition was insufficient, CBFM filed a complaint for a writ of mandamus in the Michigan Supreme Court, asserting that our Supreme Court had original jurisdiction over the action under MCL 168.479. CBFM claimed that it was entitled to mandamus or any other appropriate remedy and asked our Supreme Court to declare the 180-day rule in MCL 168.472a unconstitutional. On July 2, 2020, the Michigan Supreme Court denied the relief requested in CBFM's complaint. Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers , 505 Mich. 1137, 944 N.W.2d 723 (2020).

On July 6, 2020, CBFM filed the instant action in the Court of Claims, seeking a declaration that MCL 168.472a was unconstitutional as applied to statutory-initiative petitions. CBFM argued that the 180-day rule in MCL 168.472a unconstitutionally infringed Const. 1963, art. 2, § 9, in which the people of Michigan reserved their right to propose laws through statutory-initiative petitions. CBFM argued that unlike Const. 1963, art. 12, § 2, which concerns constitutional-amendment petitions, Const. 1963, art. 2, § 9 did not include a call for legislative regulation. Thus, according to CBFM, this omission meant that Const. 1963, art. 2, § 9 expressly limited the Legislature's authority regarding statutory-initiative petitions. CBFM argued in the alternative that even if Const. 1963, art. 2, § 9 permitted the Legislature to regulate statutory-initiative petitions, the 180-day rule was "a direct curtailment of the right and invocation-standard set forth by the Constitution." CBFM requested a preliminary injunction to require defendant to canvass the petition without excluding signatures that violated the 180-day rule.

Defendant responded, arguing, inter alia , that CBFM had not shown that it was entitled to injunctive relief because CBFM's action was "untimely and filed in the wrong court." Defendant argued that MCL 168.479 granted exclusive jurisdiction to the Michigan Supreme Court and that the Supreme Court had already denied CBFM's complaint.

Ultimately, the Court of Claims granted summary disposition in favor of defendant under MCR 2.116(I)(1), opining that it lacked subject-matter jurisdiction over CBFM's claims. The Court of Claims stated:

[T]his Court lacks jurisdiction to grant the relief requested.... The plain language of [ MCL 168.479(2) ] is clear—any challenge to [defendant's] decision on an initiative petition must be filed in the Supreme Court. This language is mandatory ....

* * *

[CBFM] properly pursued its challenge to [defendant's] decision in the Supreme Court, the Court [CBFM] admitted had original jurisdiction over such a challenge. Because the Supreme Court has jurisdiction over these challenges, this Court has none and can proceed no further.

The Court of Claims dismissed CBFM's complaint. This appeal followed.

II. STANDARD OF REVIEW

CBFM first argues that the Court of Claims erroneously determined that it lacked subject-matter jurisdiction over CBFM's claims on the basis of its erroneous interpretation that the Michigan Supreme Court had exclusive jurisdiction over the claims under MCL 168.479. More specifically, CBFM argues that our Supreme Court's jurisdiction under MCL 168.479 is actually nonexclusive because MCL 600.6419 vests the Court of Claims with exclusive jurisdiction to hear claims for declaratory relief against the state and CBFM is seeking declaratory relief. We disagree and conclude that MCL 168.479 controls in this case because it is the more recent and specific statute.

The Court of Claims granted summary disposition in favor of defendant under MCR 2.116(I)(1) on the basis that it lacked subject-matter jurisdiction to consider CBFM's claims. MCR 2.116(I)(1) provides: "If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay." This Court reviews de novo whether a trial court has subject-matter jurisdiction. Elba Twp. v. Gratiot Co. Drain Comm'r , 493 Mich. 265, 278, 831 N.W.2d 204 (2013). This Court also reviews de novo issues of statutory interpretation. Id.

III. ANALYSIS

Whether a statute applies in a certain case is an issue of statutory interpretation. In re Forfeiture of $176,598 , 465 Mich. 382, 385, 633...